BV_MiApp287

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

January 5, 2010 through April 1, 2010

CORBIN R. DAVIS

CLERK OF THE SUPREME COURT

VOLUME 287

FIRST EDITION

2012

The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materials,

ANSI Z39.48-1984.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

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

HIEF

UDGE

DAVID H. SAWYER....................................................................... 2011

UDGES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ALTON T. DAVIS ........................................................................... 2015

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

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

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

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

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

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

HIEF

LERK:

SANDRA SCHULTZ MENGEL

ESEARCH

IRECTOR:

LARRY S. ROYSTER

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

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

USTICES

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

ELIZABETH A. WEAVER............................................................ 2011

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

ROBERT P. YOUNG, J

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

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

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

OMMISSIONERS

MICHAEL J. SCHMEDLEN, C

HIEF

OMMISSIONER

SHARI M. OBERG, D

EPUTY

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER DANIEL C. BRUBAKER

LYNN K. RICHARDSON MICHAEL S. WELLMAN

KATHLEEN A. FOSTER GARY L. ROGERS

NELSON S. LEAVITT RICHARD B. LESLIE

DEBRA A. GUTIERREZ-M

GUIRE FREDERICK M. BAKER, J

ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON

DON W. ATKINS RUTH E. ZIMMERMAN

JÜRGEN O. SKOPPEK SAMUEL R. SMITH

ANNE E. ALBERS

TATE

OURT

DMINISTRATOR:

CARL L. GROMEK

LERK:

CORBIN R. DAVIS

RIER:

DAVID G. PALAZZOLO

TABLE OF CASES REPORTED

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

section beginning at page 801.)

AGE

Alpha Capital Mgt, Inc v Rentenbach ............... 589

Alpha Capital Mgt, Inc v Rentenbach ................................. 801

Attorney General v PowerPick Club .................. 13

Auto-Owners v Ferwerda (On Remand) ............ 248

Beck, In re ............................................................ 400

Carp, Farley v ....................................................... 1

Citizens Ins Co, Doe v ......................................... 585

Citizens State Bank v Nakash ............................ 289

City of Kentwood, Paris Meadows, LLC v ......... 136

Comm’r of the Office of Financial & Ins

Regulation, Michigan Deferred Presentment

Services Ass’n, Inc v ............................................ 326

Corr, People v ....................................................... 499

County Rd Ass’n of Michigan v Governor ......... 95

Dalley v Dykema Gossett PLLC ......................... 296

Dalton Twp, Essex v ............................................ 151

AGE

Dalton Twp, Michigan’s Adventure, Inc v ........ 151

Decker v Rochowiak ............................................ 666

Demlow Products, Inc, Mossing v ...................... 87

Detroit, Wolf v ...................................................... 184

DeWitt Landing & Dock Ass’n, Pine Bluffs

Area Property Owners Ass’n, Inc v ............... 690

Dextrom v Wexford County ................................ 406

Doe v Citizens Ins Co .......................................... 585

Dowdy, People v ................................................... 278

Dowdy, People v ..................................................................... 801

Driver v Naini ...................................................... 339

Dybata v Wayne County ...................................... 635

Dykema Gossett PLLC, Dalley v ........................ 296

Ellis v Henry Ford Health System ..................... 1

Essex v Dalton Twp ............................................. 151

Farley v Carp ........................................................ 1

Farmers Ins Exch, Tinnin v ................................ 511

Ferwerda, Auto-Owners v (On Remand) ........... 248

Gipson, People v .................................................. 261

Governor, County Rd Ass’n of Michigan v ........ 95

Hadden v McDermitt Apartments, LLC ............ 124

Henry Ford Health System, Ellis v .................... 1

Hill, Nuculovic v .................................................. 58

Holland v Trinity Health Care Corp .................. 524

Howell Bd of Ed, Howell Ed Ass’n,

MEA/NEA v .......................................................... 228

ii 287 M

ICH

AGE

Howell Ed Ass’n, MEA/NEA v Howell Bd of

Ed ...................................................................... 228

In re Beck ............................................................. 400

Kasberg v Ypsilanti Twp ..................................... 563

Kentwood (City of), Paris Meadows, LLC v ...... 136

Lansing Catholic Diocese, Weishuhn v .............. 211

Lewis, People v (On Remand) ............................ 356

Lucey, People v ..................................................... 267

Malone, People v .................................................. 648

Mann, People v .................................................... 283

McCauley, People v .............................................. 158

McDermitt Apartments, LLC, Hadden v ........... 124

Michigan Deferred Presentment Services

Ass’n, Inc v Comm’r of the Office of

Financial & Ins Regulation ............................. 326

Michigan’s Adventure, Inc v Dalton Twp ......... 151

Michigan State Univ, Ward v (On Rem) ............ 76

Mossing v Demlow Products, Inc ....................... 87

Naini, Driver v ..................................................... 339

Nakash, Citizens State Bank v ........................... 289

Nuculovic v Hill ................................................... 58

Paris Meadows, LLC v City of Kentwood .......... 136

ABLE OF

ASES

EPORTED

iii

AGE

People v Corr ........................................................ 499

People v Dowdy .................................................... 278

People v Dowdy ...................................................................... 801

People v Gipson ................................................... 261

People v Lewis (On Remand) ............................. 356

People v Lucey ..................................................... 267

People v Malone ................................................... 648

People v Mann ..................................................... 283

People v McCauley ............................................... 158

People v Perreault ............................................... 168

People v Waterstone ............................................ 368

Perreault, People v .............................................. 168

Persell v Wertz ..................................................... 576

Pine Bluffs Area Property Owners Ass’n, Inc v

DeWitt Landing & Dock Ass’n ....................... 690

PowerPick Club, Attorney General v ................. 13

Practical Political Consulting, Inc v Secretary

of State ............................................................. 434

Progressive Michigan Ins Co v Smith ................ 537

Rentenbach, Alpha Capital Mgt, Inc v .............. 589

Rentenbach, Alpha Capital Mgt, Inc v ................................ 801

Rochowiak, Decker v ........................................... 666

Secretary of State, Practical Political

Consulting, Inc v .............................................. 434

Smith, Progressive Michigan Ins Co v ............... 537

Southfield Rehabilitation Co, Wren v ................ 1

Tinnin v Farmers Ins Exch ................................. 511

iv 287 M

ICH

AGE

Titan Ins Co, Ward v ........................................... 552

Trinity Health Care Corp, Holland v ................. 524

Ward v Michigan State Univ (On Rem) ............. 76

Ward v Titan Ins Co ............................................ 552

Waterstone, People v ........................................... 368

Wayne County, Dybata v ..................................... 635

Weishuhn v Lansing Catholic Diocese ............... 211

Wertz, Persell v .................................................... 576

Wexford County, Dextrom v ................................ 406

Wolf v Detroit ....................................................... 184

Wren v Southfield Rehabilitation Co ................. 1

Ypsilanti Twp, Kasberg v .................................... 563

ABLE OF

ASES

EPORTED

OURT OF

PPEALS

ASES

FARLEY v CARP

WREN v SOUTHFIELD REHABILITATION COMPANY

ELLIS v HENRY FORD HEALTH SYSTEM

Docket Nos. 283405, 283418, 283726, 283727, 284319, and 284681.

Submitted July 15, 2009, at Detroit. Decided January 5, 2010, at

9:00 a.m.

Elizabeth Farley, as personal representative of the estate of Franklin

Farley, deceased, brought an action in the Wayne Circuit Court

against Nevine M. Carp, M.D.; Advanced Cardiovascular Health

Specialists, P.C.; Garden City Hospital, Osteopathic; and others,

alleging medical malpractice. The court, Louis F. Simmons, Jr., J.,

denied a motion for summary disposition by Advanced Cardiovascu-

lar and Garden City Hospital that alleged that the action was not

timely. Defendants subsequently moved for rehearing in light of the

Supreme Court’s decision in Waltz v Wyse, 469 Mich 642 (2004), but

the trial court denied the motion. Advanced Cardiovascular and

Garden City Hospital appealed separately by leave granted, and the

appeals were consolidated by the Court of Appeals. 266 Mich App 566

(2005). The Court of Appeals held that Waltz applied retroactively

and reversed and remanded the case to the trial court for entry of

summary disposition in defendants’ favor. The Supreme Court denied

plaintiff’s application for leave to appeal. 474 Mich 1020 (2006). The

trial court, Robert J. Colombo, Jr., J., did not thereafter enter an order

granting summary disposition in favor of defendants, but, instead,

entered an order reinstating the case. Advanced Cardiovascular and

Garden City Hospital appealed separately by leave granted.

Kirt Wren, as personal representative of the estate of Hiram Dent,

deceased, brought a medical malpractice action in the Wayne Circuit

Court against Southfield Rehabilitation Company, doing business as

Great Lakes Rehabilitation Hospital; St. John Riverview Hospital;

and Mohammed S. Siddiqui, D.O. The trial court, Robert J. Colombo,

Jr., J., granted summary disposition in favor of defendants on the

basis that the action was not timely filed. Plaintiff appealed, and the

Court of Appeals affirmed in an unpublished opinion per curiam,

issued March 13, 2007 (Docket No. 267024). The trial court thereaf-

ter granted plaintiff’s motion for relief from the judgment and

reinstated the case. Southfield Rehabilitation Company and St. John

Riverview Hospital appealed separately by leave granted.

ARLEY V

ARP

Labaron Ellis and Thomas J. Edmunds, as copersonal represen-

tatives of the estate of Saundra L. Edmunds, deceased, brought a

medical malpractice action in the Wayne Circuit Court against Henry

Ford Health System, doing business as Henry Ford Hospital; Sachin

Goel, M.D.; and others. Defendants moved for summary disposition

on the basis that the action was not timely filed. The trial court,

Wendy M. Baxter, J., denied the motion. The court thereafter entered

an order granting relief from that order and dismissed the action.

Plaintiffs thereafter moved to reinstate the action, and the trial court,

Cynthia D. Stephens, J., granted the motion. Defendants appealed by

leave granted. The Court of Appeals consolidated the cases for

purposes of argument and decision.

The Court of Appeals held:

1. The Court of Appeals decision in Kidder v Ptacin, 284 Mich

App 166 (2009), controls the outcome of the Wren case, and its

reasoning applies to the determination of the Farley and Ellis

cases. Kidder held that relief from a judgment is not appropriate

where the case has been dismissed in accordance with a directive

of the Court of Appeals and the appellate process has been

concluded. The Kidder principle also applies where the trial court

has previously dismissed a case and no appeal has been taken and

where the trial court has not yet complied with a directive of the

Court of Appeals to dismiss the case.

2. If relief from judgment should not be granted under MCR

2.612(C)(1)(f) where a party sleeps on their appellate rights by

failing to seek leave to appeal in the Supreme Court from an

adverse ruling in the Court of Appeals, then relief from judgment

is not appropriate where the party never even pursues an appeal

from the trial court’s ruling to the Court of Appeals.

3. Relief from judgment under MCR 2.612(C)(1)(f) is inappro-

priate where a party has not sought appellate review of a trial

court’s final order and the basis for relief from judgment is a

subsequent appellate decision in a different case.

4. The trial court in Farley was required to follow the direc-

tions of the Court of Appeals to grant defendants summary

disposition. Once the trial court complies with that directive, it is

precluded from granting relief from judgment under the law of the

case doctrine. The orders of the trial courts in all three cases that

reinstated the cases must be vacated and the cases must be

remanded for the entry of orders of summary disposition in favor

of defendants.

Vacated and remanded.

2 287 M

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1 [Jan

ORRELLO,

J., dissenting, stated his agreement with the majority

that the Court of Appeals is bound by MCR 7.215(J)(1) to follow

Kidder in Wren and Ellis but also stated his opinion that Kidder

was wrongly decided and a conflict should be declared under MCR

7.215(J)(2). The majority errs by holding that Kidder controls the

outcome in Farley because Farley is factually distinguishable from

Kidder in that the Farley plaintiff availed herself of the appellate

process while the plaintiff in Kidder failed to appeal the judgment

of the Court of Appeals. It should be concluded that the trial court

did not abuse its discretion by reinstating the Farley case because

MCR 2.612(C)(1)(f) gives a trial court authority to relieve a party

from a judgment.

1. J

UDGMENTS —

ELIEF

ROM

UDGMENTS

Relief from a judgment of a trial court is not appropriate where the

case has been dismissed in accordance with a directive of the Court

of Appeals and the appellate process has been concluded or where

the trial court has yet to comply with the directive of the Court of

Appeals to dismiss the case.

2. J

UDGMENTS —

ELIEF

ROM

UDGMENTS

Relief from a judgment should not be granted under MCR

2.612(C)(1)(f) where a party sleeps on their appellate rights by

failing to seek leave to appeal in the Supreme Court from an

adverse ruling in the Court of Appeals; relief from a judgment is

not appropriate where the party never pursues an appeal from the

trial court’s ruling to the Court of Appeals.

3. J

UDGMENTS —

ELIEF

ROM

UDGMENTS

Relief from a judgment under MCR 2.612(C)(1)(f) is inappropriate

where a party has not sought appellate review of the trial court’s

final order and the basis on which relief from the judgment is

sought is a subsequent appellate decision in a different case.

McKeen & Associates, P.C. (by Euel W. Kinsey), for

Elizabeth Farley.

Mindell, Malin, Kutinsky, Stone & Blatnikoff (by

Glenn H. Oliver) for Kirt Wren.

Mark Granzotto, P.C. (by Mark R. Granzotto), and

The Thurswell Law Firm (by Judith A. Susskind) for

Labaron Ellis and Thomas J. Edmunds.

2010] F

ARLEY V

ARP

Plunkett Cooney (by Robert G. Kamenec) for Ad-

vanced Cardiovascular Health Specialists, P.C.

Feikens, Stevens, Kennedy & Galbraith, P.C. (by Jef-

frey Feikens), for Garden City Hospital, Osteopathic.

Merry, Farnen & Ryan, P.C. (by Cynthia E. Merry and

John J. Schutza), for St. John Riverview Hospital.

Ramar & Paradiso, P.C. (by John J. Ramar), for

Southfield Rehabilitation Company.

Ramar & Paradiso, P.C. (by Anthony J. Paradiso and

Carmine G. Paterra), for Henry Ford Health System

and others.

Before: S

AAD

, C.J., and S

AWYER

and B

ORRELLO

,JJ.

AWYER

, J. This trio of cases provides us with the

opportunity to determine the scope of the applicability of

this Court’s recent decision in Kidder v Ptacin,

which

held that relief from a judgment was not appropriate

where the case had been dismissed in accordance with a

directive of this Court and the appellate process had

been concluded. Although originally submitted as three

separate cases, because of the common issue presented

in light of Kidder, on our own motion we consolidated

these cases for purposes of argument and decision. In

these appeals, we hold that the Kidder principle also

applies where the trial court had previously dismissed a

case and no appeal had been taken and where the trial

court had not yet complied with this Court’s earlier

directive.

Our decision in Kidder considered the application of

the Supreme Court’s decision in Mullins v St Joseph

284 Mich App 166; 771 NW2d 806 (2009).

4 287 M

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1 [Jan

PINION OF THE

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Mercy Hosp

to cases that had been previously decided

by this Court under Waltz v Wyse

resulting in summary

dispositions in favor of the defendants in certain medi-

cal malpractice actions. The Supreme Court’s order in

Mullins had reversed this Court’s holding that Waltz

was to be given full retroactive effect. The Supreme

Court’s order in Mullins

held that Waltz was not to be

applied to any action filed after the decision in Omelen-

chuk v City of Warren

in which the saving period had

expired within 182 days after the decision in Waltz.In

Kidder, this Court, in a prior unpublished opinion per

curiam issued before the Supreme Court’s order in Mul-

lins, applied the decision in Waltz, concluding that the

plaintiff’s suit was not timely, and reversed and remanded

the matter to the trial court with instructions to grant

summary disposition to the defendants.

The trial court

complied with this Court’s directions and dismissed the

case.

Thereafter, the Supreme Court entered its order in

Mullins. Because the plaintiff in Kidder would have

prevailed under the Mullins holding, the plaintiff in

Kidder moved for relief from judgment, which the trial

court granted and reinstated the plaintiff’s case.

The defendants appealed, arguing that, under the law

of the case doctrine, the trial court was obliged to follow

this Court’s previous directions to dismiss the case. This

Court agreed and again ordered the trial court to grant

summary disposition in favor of the defendants.

480 Mich 948 (2007).

469 Mich 642; 677 NW2d 813 (2004).

Mullins, supra at 948.

461 Mich 567; 609 NW2d 177 (2000).

Kidder, supra at 168-169.

Id. at 169.

Id.

Id. at 171.

2010] F

ARLEY V

ARP

PINION OF THE

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The three cases before us present a variation on the

facts of Kidder. In each case, we conclude that Kidder

either directly controls the outcome of the case or that

at least the reasoning in Kidder applies and judgment

for defendants is appropriate.

Of the three cases, perhaps the easiest to resolve is

Wren (Docket Nos. 283726 and 283727), because the

procedural facts are essentially identical to Kidder.In

both Wren and Kidder, this Court issued an opinion

before the Supreme Court’s order in Mullins, which

applied Waltz retroactively and concluded that the cases

were untimely filed.

Thus, both cases were concluded

at the time the Supreme Court entered its order in

Mullins, and the plaintiffs in both cases sought to have

their cases reinstated in light of Mullins. In both cases,

the trial court ultimately granted relief from judgment

in light of Mullins and ordered the cases reinstated.

Given that Wren is in the same procedural posture as

Kidder, Kidder directly controls the outcome of Wren.

Therefore, we conclude that, in light of Kidder, the trial

court erred by reinstating plaintiff’s cause of action. We

vacate the trial court’s order in Wren reinstating this

matter.

The situation in Ellis (Docket No. 284319) is some-

what different from Kidder, but we nonetheless believe

that Kidder directs us to the same result. The difference

There is one distinction between Wren and Kidder in this regard: in

Kidder, the trial court had ruled in the plaintiff’s favor and the prior

appeal was an interlocutory appeal by the defendants seeking to have the

case dismissed, while in Wren the trial court had dismissed the case and

plaintiff appealed to this Court in the prior appeal. But we see no

meaningful distinction in this slightly different procedural posture in the

prior appeals.

Another similarity of both Kidder and Wren is that in neither case

did the plaintiffs seek leave to appeal in the Supreme Court after losing

in this Court.

6 287 M

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1 [Jan

PINION OF THE

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in Ellis is that plaintiffs never sought to appeal the trial

court’s original decision to dismiss the case in light of

the retroactive application of Waltz. That is, the proce-

dural posture of Ellis at the time that the Supreme

Court entered its order in Mullins was that the trial

court had granted defendants’ motion and dismissed

the case, with plaintiffs not taking an appeal from that

decision. The Supreme Court issued its decision in

Mullins nearly a year later, prompting plaintiffs to file

their motion to reinstate the case, which the trial court

granted.

Technically speaking, the law of the case doctrine

does not apply here because there is not a decision of a

higher court that is now binding on the lower court.

Despite that fact, however, it is not tenable that plain-

tiffs in this case should prevail while the plaintiffs in

Wren and Ellis lose. In Kidder,

we made the following

observation:

MCR 2.612(C)(1)(f) is likewise inapplicable. Just as

“equity aids the vigilant, not those who sleep on their

rights,” Falk v State Bar of Michigan, 411 Mich 63, 113 n

27; 305 NW2d 201 (1981) (R

YAN

, J., joined by M

OODY

and

ITZGERALD

, JJ.) (quotation marks and citations omitted), so

does the appellate process. See Lothian v Detroit, 414 Mich

160, 175; 324 NW2d 9 (1982) (denying relief to an appellant

who, “wholly apprised of the facts which constituted his

cause of action, chose to sleep on his rights until a subse-

quent appellate court decision roused him to action”). The

instant defendants were neither parties to Mullins nor

among those similarly situated parties whose cases were

pending in the appellate process. Instead, as earlier indi-

cated, the dismissal of plaintiff’s case had become final (an

effective judgment). The interests of justice truly militate

See Kidder, supra at 170.

Id. at 171.

2010] F

ARLEY V

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PINION OF THE

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against allowing a defeated party’s action to spring back to

life because others have availed themselves of the appellate

process.

If relief from judgment should not be granted under

MCR 2.612(C)(1)(f) where a party sleeps on their appel-

late rights by failing to seek leave to appeal in the

Supreme Court from an adverse ruling in this Court,

then certainly relief from judgment is not appropriate

where the party never even pursues an appeal from the

trial court’s ruling to this Court. To hold otherwise

would allow plaintiffs’ “action to spring back to life

because others have availed themselves of the appellate

process.”

We hold that relief from judgment under MCR

2.612(C)(1)(f) is inappropriate where a party has not

sought appellate review of a trial court’s final order and

the basis for relief from judgment is a subsequent

appellate decision in a different case. Accordingly, the

trial court in Ellis erred by granting plaintiffs relief

from judgment and reinstating their cause of action. We

vacate that order and reinstate the trial court’s original

order dismissing the case with prejudice.

We finally turn to Farley (Docket Nos. 283405,

283418, and 284681), which presents the most distinct

set of facts of this trio of cases. In Farley, there are two

significant procedural differences from Kidder and

Wren. First, in Farley, plaintiff did not sit on her

appellate rights. After the adverse decision in this

Court, she sought leave to appeal in the Supreme Court,

which denied leave.

Second, the trial court never

complied with this Court’s directions on remand. That

is, in our prior opinion, we directed the trial court to

Kidder, supra at 171.

Farley v Advanced Cardiovascular Health Specialists, PC, 474 Mich

1020 (2006).

8 287 M

ICH

1 [Jan

PINION OF THE

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enter an order granting defendants summary disposi-

tion.

The trial court never complied with that direc-

tive. Thus, the trial court never granted plaintiff relief

from judgment after the Supreme Court’s decision in

Mullins because there was no trial court judgment to

grant relief from.

We do not believe that either of these distinctions,

however, requires a different result. The fact that the

Supreme Court denied leave to appeal means that our

earlier decision is now the final adjudication in this case

and may be enforced according to its terms.

Further-

more, we cannot endorse a process by which relief can

be obtained because the lower court chose to simply

ignore the clear directive of the appellate court, allow-

ing the case to languish until there is a change in law to

justify the result that the lower court would like to

apply.

Simply put, the trial court had no alternative in this

case other than to comply with the direction of this Court

in our previous opinion. And once the trial court so

complies, as discussed above, it is precluded from granting

relief from judgment under the law of the case doctrine.

The orders of the trial courts reinstating these cases

are vacated. The matters are remanded to the respec-

tive trial courts with direction to enter orders of sum-

mary disposition in favor of defendants. We do not

retain jurisdiction. Costs to defendants.

Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich

App 566, 568-570; 703 NW2d 115 (2005).

Detroit v Gen Motors Corp, 233 Mich App 132, 140; 592 NW2d 732

(1998).

See Cox v Flint Bd of Hosp Managers (On Remand), 243 Mich App

72, 93; 620 NW2d 859 (2000), and Sumner v Gen Motors Corp (On

Remand), 245 Mich App 653; 633 NW2d 1 (2001) (discussing the need for

finality in this Court’s judgments).

2010] F

ARLEY V

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PINION OF THE

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AAD

, C.J., concurred.

ORRELLO

,J.(dissenting). I respectfully dissent from

the majority’s opinion in these consolidated cases.

While I agree with the majority that we are bound by

MCR 7.215(J)(1) to follow Kidder v Ptacin, 284 Mich

App 166; 771 NW2d 806 (2009), in Wren (Docket Nos.

283726 and 283727) and Ellis (Docket No. 284319),

because I am of the opinion that Kidder was wrongly

decided, I would declare a conflict under MCR

7.215(J)(2). Furthermore, I disagree with the majority

that Kidder controls the outcome in Farley (Docket

Nos. 283405, 283418, and 284681) because Farley is

factually distinguishable from Kidder. Contrary to the

result reached by the majority, I would conclude that

the trial court did not abuse its discretion by reinstating

plaintiff’s case in Farley.

I believe that the majority’s reliance on Kidder in

Farley is misplaced because the facts in Farley are

distinguishable from the facts in Kidder. MCR

2.612(C)(1)(f) authorizes relief from judgment for

“[a]ny other reason justifying relief from the operation

of the judgment.” In Kidder, this Court ruled that MCR

2.612(C)(1)(f) was inapplicable because the plaintiff in

that case failed to appeal the judgment of this Court.

Kidder, supra at 169, 171. In declining to apply MCR

2.612(C)(1)(f), this Court stated:

Just as “equity aids the vigilant, not those who sleep on

their rights,” Falk v State Bar of Michigan, 411 Mich 63,

113 n 27; 305 NW2d 201 (1981) (R

YAN

, J., joined by M

OODY

and F

ITZGERALD

, JJ.) (quotation marks and citations omit-

ted), so does the appellate process. See Lothian v Detroit,

414 Mich 160, 175; 324 NW2d 9 (1982) (denying relief to an

appellant who, “wholly apprised of the facts which consti-

tuted his cause of action, chose to sleep on his rights until

a subsequent appellate court decision roused him to ac-

tion”).... The interests of justice truly militate against

10 287 M

ICH

1 [Jan

ISSENTING

PINION BY

ORRELLO

,J.

allowing a defeated party’s action to spring back to life

because others have availed themselves of the appellate

process. [Kidder, supra at 171.]

As the majority notes, plaintiff in Farley did not sleep

or sit on her appellate rights like the plaintiff in Kidder.

To the contrary, plaintiff in Farley moved for reconsid-

eration in this Court

and appealed this Court’s decision

to the Supreme Court, which denied leave to appeal.

Because plaintiff availed herself of the appellate process

in Farley, Kidder’s reasoning for declining to apply

MCR 2.612(C)(1)(f) is inapplicable here, and the inter-

ests of justice do not militate against allowing plaintiff

to pursue her case. Rather, the interests of justice

dictate a contrary result from that reached by my

colleagues in the majority. Based on my review of the

proceedings in the trial court, any reliance on Kidder to

reverse the trial court’s reinstatement of plaintiff’s case

in Farley is improper and unjust.

Although plaintiff’s motion following the Supreme

Court’s decision in Mullins v St Joseph Mercy Hosp, 480

Mich 948(2007), was technically a motion to lift a stay

rather than a motion to reinstate the case, the trial

court noted on the record that it had not imposed a stay

and treated plaintiff’s motion as a motion to reinstate

the case. “ ‘This Court reviews for abuse of discretion a

trial court’s decision concerning a motion to reinstate

an action.’ ” Kidder, supra at 170, quoting Wickings v

Arctic Enterprises, Inc, 244 Mich App 125, 138; 624

NW2d 197 (2000). The abuse of discretion standard

recognizes “ ‘that there will be circumstances in which

there will be no single correct outcome; rather, there

Farley v Carp, unpublished order of the Court of Appeals, entered

July 22, 2005 (Docket Nos. 256776, 256799, and 257988).

Farley v Advanced Cardiovascular Health Specialists, PC, 474 Mich

1020 (2006).

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will be more than one reasonable and principled out-

come.’ ” Maldonado v Ford Motor Co, 476 Mich 372,

388; 719 NW2d 809 (2006), quoting People v Babcock,

469 Mich 247, 269; 666 NW2d 231 (2003). “An abuse of

discretion occurs when the decision results in an out-

come falling outside the principled range of outcomes.”

Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842

(2006).

Unlike the majority, I would conclude that the trial

court’s reinstatement of plaintiff’s case in Farley was

not an abuse of discretion. Given the trial court’s

authority to relieve a party from a judgment under

MCR 2.612(C)(1)(f) and the fact that plaintiff in Farley

availed herself of the appellate process, I would con-

clude that Kidder is distinguishable and hold that the

trial court’s reinstatement of plaintiff’s case in Farley

did not fall outside the principled range of outcomes.

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ISSENTING

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,J.

ATTORNEY GENERAL v

POWERPICK PLAYER’S CLUB OF MICHIGAN, LLC

Docket No. 283858. Submitted June 9, 2009, at Grand Rapids. Decided

January 5, 2010, at 9:05 a.m.

The Attorney General brought an action in the Kent Circuit Court,

George S. Buth, J., against PowerPick Player’s Club of Michigan,

LLC, seeking to enjoin an alleged public nuisance resulting from

defendant’s operation of what it characterizes as a professional

lottery club. The Attorney General alleged that defendant’s opera-

tions violated several antigambling statutes and therefore consti-

tuted an enjoinable public nuisance and that the operations violated

the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq.

The Attorney General moved for summary disposition, alleging that

there was no dispute with regard to the facts and that the only matter

to be decided was what legal conclusions could be drawn from the

facts. PowerPick also moved for summary disposition, asserting

several affirmative defenses. The court denied the Attorney General’s

motion, concluding that there were a number of factual issues yet to

be decided. The Attorney General appealed by leave granted.

The Court of Appeals held:

1. At the time of the circuit court’s ruling there remained no

genuine issue of material fact that would have precluded the grant of

summary disposition with respect to the Attorney General’s nuisance

claim. The evidence did not present disputed issues of fact. The only

question presented for resolution was whether PowerPick’s opera-

tions, as described in the uncontroverted materials and documents

presented to the circuit court, fell within the scope of the statutes

cited by the Attorney General. This was purely a legal question for

the court, not a factual question for the jury.

2. The Attorney General was entitled to judgment as a matter

of law with respect to the nuisance claim because PowerPick’s

operations constituted an enjoinable nuisance. The order denying

the Attorney General’s motion for summary disposition with

respect to the nuisance claim must be reversed.

3. PowerPick’s PowerPool scheme contemplates the placement

of bets under MCL 750.301. PowerPick registers those bets in

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violation of MCL 750.304, and PowerPick possesses memoranda of

bets in violation of MCL 750.306.

4. PowerPick’s random assignment of customers to the individual

PowerPools injects an additional element of uncertainty into a

customer’s chance of sharing in a winning ticket and the customers

bet on the outcome of these random computerized assignments. This

scheme is encompassed within the definition of betting.

5. The general prohibition against the sale of lottery tickets by

unlicensed persons contained in MCL 432.27(1) encompasses

for-profit, third-party transfers. PowerPick sells lottery tickets or

shares at a price greater than that fixed by rule of the Michigan

Lottery commissioner in violation of MCL 432.27(1).

6. PowerPick’s periodic random drawings for Michigan Lottery

scratch-off tickets constitute an illegal lottery within the meaning

of MCL 750.372, and the MegaPools constitute an illegal gift

enterprise within the meaning of MCL 750.372.

7. Although an unscratched instant lottery ticket generally has

little or no actual monetary worth, it can have a great deal of

potential value and thus may constitute a “prize” for purposes of

considering the traditional elements of a lottery consisting of

consideration, prize, and chance.

8. PowerPick violates the provisions of MCL 750.372 by setting

up and managing the periodic drawings for scratch-off tickets and

the MegaPools.

9. PowerPick’s various gaming schemes violate the terms of

MCL 432.27(1), MCL 750.301, MCL 750.304, MCL 750.306, and

MCL 750.372. The lottery and gambling statutes were validly

enacted to preserve the public safety, morals, and welfare. Harm to

the public is presumed to flow from PowerPick’s operations that

violate these statutes. PowerPick’s business operations, taken as a

whole, constitute a public nuisance.

10. PowerPick’s office in Comstock Park and the furniture,

fixtures, and contents of the office constitute a nuisance as a

matter of law.

11. PowerPick engages in gambling within the meaning of

MCL 600.3801.

12. PowerPick’s periodic drawings for scratch-off tickets con-

stitute gambling under MCL 600.3801.

13. PowerPick owns, leases, conducts, or maintains the build-

ing in Comstock Park and uses it for the purpose of gambling

within the meaning of MCL 600.3801, even if it does not hold the

actual periodic drawings for the scratch-off tickets at the building.

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The office in Comstock Park as well as the furniture, fixtures, and

contents of the office constitute an enjoinable nuisance under

MCL 600.3801.

14. The trial court erred by denying the Attorney General’s

motion for summary disposition with regard to PowerPick’s affir-

mative defenses under MCR 2.116(C)(9).

15. The Attorney General did state a claim on which relief

could be granted and properly pleaded and supported his allega-

tions of nuisance and unlawful gambling.

16. PowerPick failed to support its claim that it was being

treated differently than similarly situated entities. No equal

protection violation was shown.

17. The equitable defense of laches was unavailable to Power-

Pick because it acted with unclean hands by violating MCL

432.27(1), MCL 750.301, MCL 750.304, MCL 750.306, and MCL

750.372. For the same reason, PowerPick was not entitled to assert

the equitable defense of unclean hands.

18. PowerPick’s affirmative defenses fail as a matter of law.

The trial court should have granted the Attorney General’s motion

for summary disposition with regard to those affirmative defenses.

19. The trial court, on remand, must address the claim that

PowerPick’s operations violate the MCPA.

20. The order of the trial court must be reversed and the

matter must be remanded to the trial court for the entry of a

judgment in favor of the Attorney General with respect to the

nuisance claim and for consideration of the MCPA claim.

Reversed and remanded.

OEKSTRA,

J., concurring in part and dissenting in part, agreed

with the majority that PowerPick violates MCL 432.27(1), by resell-

ing lottery tickets at a price greater than that fixed by the Michigan

Lottery commissioner, that it violates MCL 750.372, because its

random drawings for scratch-off tickets constitute an illegal lottery,

that its MegaPools constitute an illegal gift enterprise, that Power-

Pick’s affirmative defenses fail as a matter of law, and that it is

appropriate to remand the case for consideration of the MCPA claims.

Judge H

OEKSTRA

would, however, affirm the trial court’s holding that

factual issues remain with respect to whether the amount charged in

addition to the cost of the purchased lottery tickets is a reasonable

amount to pay for PowerPick’s business expenses and profit or is in

fact a second bet that buys the customer a chance to be assigned to a

winning pool. Because these factual issues exist, it is premature to

determine whether PowerPick’s business operations and its office

and furnishings constitute a nuisance. The case should be remanded

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to also consider whether a violation of MCL 432.27(1) constitutes a

public nuisance and, if so, whether, and to what extent, the violation

is subject to the sanctions of MCL 600.3801. Although the majority

correctly holds that the drawings for scratch-off tickets are gambling

and that PowerPick can be sanctioned under MCL 600.3801, the case

should be remanded for a determination regarding what assets, if any,

are subject to the sanction.

1. M

OTIONS AND

RDERS —

UMMARY

ISPOSITION

Summary disposition of all or part of a claim or defense may be

granted when, except as to the amount of damages, there is no

genuine issue as to any material fact; 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; in general, a factual dispute exists when there

is conflicting evidence concerning what happened, or when, where,

or how something happened, or who was involved, or some other

similar factual inquiry (MCR 2.116 [C][10]).

2. T

RIAL —

ULY

RIALS —

OLE OF

URY

The proper role of a jury is to decide what the facts are and not what

the facts mean.

3. W

ORDS AND

HRASES —

ETTING

The term “betting” in common speech means the putting of a certain

sum of money or other valuable thing at stake on the happening or

not happening of some uncertain event.

4. G

AMING —

ETTING

The legislative goal behind the enactment of MCL 750.301 was the

suppression of betting; the statute prohibits private betting be-

tween consenting parties and is not limited to combating only the

effects of organized and commercialized gambling.

5. L

OTTERIES —

ICENSES —

-P

ROFIT,

HIRD

-P

ARTY

RANSFERS

The Legislature, in enacting MCL 432.27(1), intended that the prohi-

bition against sales of lottery tickets by persons who are not licensed

agents is to be read broadly; the general prohibition against unli-

censed sales or selling a ticket at a price greater than that fixed by the

lottery commissioner encompasses for-profit, third-party transfers.

6. L

OTTERIES —

RADITIONAL

LEMENTS

The traditional common-law elements of a lottery are consideration,

prize, and chance; these essentials cannot be used to frustrate the

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plain and ordinary meaning of the word lottery; a “lottery” is

commonly defined as a gambling game or method of raising money

in which a large number of tickets are sold and a drawing is held

for prizes, or a drawing of lots, or any happening or process that is

or appears to be determined by chance.

7. L

OTTERIES —

IFT

NTERPRISES

A gift enterprise is, among other things, a merchant’s scheme to

induce sales by giving buyers tickets that carry a chance to win a

prize (MCL 750.372).

8. L

OTTERIES —

AMBLING —

UBLIC

ARM

Michigan’s lottery and gambling statutes were validly enacted to

preserve the public safety, morals, and welfare; harm to the public

is presumed to flow from violation of a valid statute enacted to

preserve the public health, safety, and welfare.

9. G

AMBLING —

OMMON

-L

LEMENTS

The common-law elements of “gaming” or “gambling” are price or

consideration, chance, and prize or award.

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

Solicitor General, and Donald S. McGehee and Melinda

A. Leonard, Assistant Attorneys General, for plaintiff.

Morganroth & Morganroth, PLLC (by Mayer Mor-

ganroth and Jason R. Hirsch), for defendant.

Before: J

ANSEN

,P.J., and H

OEKSTRA

and M

ARKEY

,JJ.

ANSEN

,P.J. In this action brought to enjoin an alleged

public nuisance, plaintiff Attorney General appeals by

leave granted the circuit court’s order denying his motion

for summary disposition. We reverse and remand for

further proceedings consistent with this opinion.

Defendant PowerPick Player’s Club of Michigan,

LLC, operates what it characterizes as a professional

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lottery club. The Attorney General filed the present

action alleging that PowerPick’s operations violated

several of Michigan’s antigambling statutes and there-

fore constituted an enjoinable public nuisance. The

Attorney General also alleged that PowerPick’s opera-

tions violated the Michigan Consumer Protection Act

(MCPA), MCL 445.901 et seq.

Contrary to the ruling of the circuit court, the

material facts of this case are beyond serious dispute.

Indeed, PowerPick, itself, confirms the majority of the

relevant factual details of this case through its own

exhibits and documentary evidence. PowerPick is a

subsidiary of PowerPick America, LLC, which was

started in Arizona in the mid-1990s by Andrew and

Judy Amada. It has operated in Michigan since 2002.

PowerPick’s main business is pooling lottery players.

On its website, under the heading “What is PowerPick

all about,” PowerPick describes the nature of its busi-

ness in broad overview:

PowerPick is about giving people HUNDREDS MORE

chances of becoming a lottery jackpot winner through pools

put together by PowerPick, and all you need is yourself.

Our pools include many benefits....Wedoeverything for

you, so you can start out sharing HUNDREDS of tickets

instead of sharing just a few tickets! While the best

example of pooling is the “office pool” where groups of

players combine their dollars to share the tickets and share

the winnings, with PowerPick, each person in the group

ends up with dramatically more chances of becoming a big

winner because of the large blocks of tickets that are

purchased. Plus you will benefit from so many of our other

free services....

PowerPick does all the work [for] you. One call can

answer your questions and we can place your order by

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phone or mail. You can use a credit card, debit card or check

over the phone. You won’t be standing in line, forgetting to

buy tickets or making last minute dashes to the store. It’s

simply the most powerful, exciting and convenient way of

playing.

Customers join PowerPick by paying a nominal “one-

time setup fee.” Once a customer has joined, he or she

may then select from PowerPick’s various pooling pack-

ages. PowerPick uses a computer system to randomly

assign each customer to a particular pool of the type

that he or she has chosen. After the assignment is made,

PowerPick mails the customer a confirmation certifi-

cate, listing all the numbers purchased for the particu-

lar pool. PowerPick operates several different types of

pooling packages that its customers can choose to join.

PowerPick’s primary pooling packages are called

“PowerPools,” which consist of Mega Millions pools,

Classic Lotto 47 pools, Keno pools, and Fantasy 5 pools.

According to PowerPick’s website, the Mega Millions

pools and Classic Lotto 47 pools consist of either 25 or

50 shares each. The Keno pools and Fantasy 5 pools

consist of 10 shares each. After the participants in a

particular PowerPool pay their money, PowerPick uses

a portion of it to buy lottery tickets from a licensed

Michigan lottery retailer.

The participants in the particular PowerPool then

share any winnings on a pro rata basis. Thus, for

example, if a customer buys one share in a 25-share

PowerPool, he or she receives

of any winnings for

that particular pool. Similarly, if a customer buys three

shares in a 50-share PowerPool, he or she receives

any winnings for that particular pool.

PowerPick operates other pools as well. For example,

customers who have bought into one of PowerPick’s

main PowerPools may also participate in one or both of

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the “Million Dollar Clubs” (MDCs). PowerPick offers a

$50 MDC and $100 MDC. PowerPick’s website de-

scribes the $100 MDCs as follows:

We will purchase up to 5 blocks of 1,000 tickets...on

EVERY drawing night the Mega Millions jackpot is esti-

mated to be $100 MILLION or more. In addition you can

purchase up to 3 shares in each block [pool], which makes

your share of the prize 3 times greater!

We will try to keep the number of shares in each pool to

about 1,200 plus or minus about 100 to produce an approxi-

mate range of 1100 to 1300 shares, with 1100 being the

absolute minimum. PowerPick receives any shares under

1100 that are not ordered. So, if there are 1,200 shares in

the pool, then each prize will be divided 1,200 ways. And, of

course, all the prizes, not just the jackpot, will be distrib-

uted.

PowerPick further describes how to participate in the

$100 MDCs:

All you do is sign up saying that you would like to share

in 1,000 extra Mega Millions tickets each drawing night

that the Mega Millions jackpot is $100 Million or higher.

What does this cost? Just a Buck! You will own 1 share in

1,000 tickets for only $1 per drawing.

The $50 MDCs operate similarly except that Power-

Pick purchases 500 tickets, rather than 1,000 tickets,

when the Mega Millions jackpot is more than $50

million but less than $100 million. PowerPick’s website

further describes the $50 MDCs:

This club works identically the same as the $100 MDC,

except that each pool is 500 tickets instead of 1,000 tickets

and the number of shares in each pool is about half as

many, so the number of shares in each pool will be

approximately 600-700, with 600 being the absolute mini-

mum. PowerPick receives any shares under 600 that are

not ordered.

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Unlike the participants in the PowerPools, the par-

ticipants in the MDCs do not know how many other

participants will be in their respective pool at the time

they buy their tickets. According to Andrew Amada’s

deposition testimony, PowerPick decides how many

players will be in an MDC pool only after considering

how many shares have been bought. If more than 1,300

shares are bought, a second MDC pool is opened. The

number of participants is then split evenly between the

two MDC pools.

PowerPick also conducts what it calls “MegaPools.”

It describes the MegaPools on its website as follows:

Each MegaPool is a separate pool of 100 Mega Millions

tickets that are purchased every Tuesday and Friday night.

This pool is a FREE bonus and is in addition to each

player’s PowerPool.

***

Each MegaPool is made up of approximately 700-1,400

players. Every active member with a PowerPool selection is

included in a MegaPool!

Thus, every PowerPick customer is included in one of

the MegaPools as an additional “FREE bonus” as long

as he or she is participating in at least one PowerPool.

It also appears that PowerPick can purchase shares

in any of its pooling packages just like any of its

customers can. In this way, PowerPick, itself, receives a

pro rata share of any money won by the particular pools

in which it participates.

PowerPick conducts additional games of chance that

it announces from time to time in its newsletter. For

instance, in one game, newsletter readers were asked to

count the “Shamrocks hidden” within the newsletter

and send in their count. The newsletter announced that

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“[t]he first three randomly drawn with the correct

answer will each win 10 of the $10 Take Home Millions

scratch tickets.” PowerPick regularly awards Michigan

Lottery scratch-off tickets as prizes in these periodic

newsletter games.

PowerPick claims to be substantially similar to a

typical office lottery club. But unlike the practice of a

typical office lottery club, PowerPick does not use all

the money it collects from its customers to buy lottery

tickets. According to its website, only 51 percent of the

money that PowerPick collects from its customers is

used to buy lottery tickets. Forty-one percent goes to

“[c]ompany operating costs” and eight percent is taken

as PowerPick’s profit. Further, as noted previously,

PowerPick can supplement its profits by purchasing its

own shares in the various pools that it operates. Pow-

erPick, itself, receives a pro rata share of any winnings

when it does so.

In March 2006, the Attorney General sent a letter to

PowerPick, demanding that PowerPick

cease and desist using the “Michigan Lottery” and “Mega-

Millions” names and any versions of those names, cease

and desist selling or reselling Michigan Lottery tickets or

shares and providing Michigan Lottery tickets or shares as

bonuses or awards to its customers, and that PowerPick

disconnect, disable and discontinue its Michigan Web site

for the reason that engaging in these activities violates

[federal law] and the Michigan Penal Code.

The Attorney General pointed out that MCL 432.27(1)

provides that “[a] person shall not sell a ticket or share

at a price greater than that fixed by rule of the commis-

sioner. A person other than a licensed lottery sales

agent shall not sell lottery tickets or shares.” The

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Attorney General also noted that “MCL 750.301 pro-

hibits accepting money with the understanding that

money will be paid to any person contingent upon the

happening of an uncertain event.” The Attorney Gen-

eral went on to state:

The Penal Code further prohibits buying and selling

pools, MCL 750.304; publishing information concerning

making bets or selling pools, MCL 750.305; keeping or

occupying a building for gaming, MCL 750.302; possessing

pool tickets, MCL 750.[3]06(1); promoting a lottery for

money, MCL 750.372(1); and setting up or aiding in the

setting up, managing, or drawing of a lottery or gift

enterprise, id. The Penal Code also declares pool tickets a

common nuisance, MCL 750.306(1).

PowerPick continued its operations, leading the At-

torney General to issue a notice of intended action in

September 2006. The notice contained the allegations

set out in the cease and desist letter. The Attorney

General then filed a complaint containing the same

allegations. PowerPick answered the complaint and

asserted several affirmative defenses, including failure

to state a claim on which relief could be granted, equal

protection guarantees, laches, and unclean hands.

The parties filed cross-motions for summary disposi-

tion. At a hearing in January 2008, the Attorney General

asserted that there was no dispute as to the facts and that

the only matter to be decided was what legal conclusions

could be drawn from the facts. The Attorney General

asked the circuit court to construe the applicable statutes

and to consider the undisputed evidence from Power-

Pick’s website and handbook, as well as the relevant

deposition testimony. The Attorney General argued that

PowerPick illegally collected wagers into pools and then

sold interests in the pools. The Attorney General further

argued that PowerPick’s random drawings for scratch-off

tickets constituted an illegal lottery and that PowerPick

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illegally promoted both its own lottery and the Michigan

Lottery for money in contravention of MCL 750.372. The

Attorney General also argued that PowerPick was illegally

selling shares in lottery tickets and possessed pool tickets

in violation of MCL 750.306.

PowerPick argued that it was entitled to summary

disposition, but also asserted that even if the court was

not inclined to grant summary disposition in its favor,

the court should at least deny the Attorney General’s

motion because there was “a clash of evidence.” How-

ever, despite this assertion, PowerPick never specifi-

cally identified which evidence was in dispute. Power-

Pick’s attorney argued that PowerPick had not

promoted a lottery for money, but had simply promoted

its own business. PowerPick pointed to a federal case in

which its Arizona operation had been accused of violat-

ing federal lottery laws, but in which the federal court

had ruled against the government on the ground that

PowerPick was simply being compensated for services it

provided to its customers. PowerPick asserted that it

provided valuable services, such as eliminating the need

for its customers to wait in line to buy lottery tickets,

holding the lottery tickets in trust for its customers,

and making sure that none of the lottery tickets was

lost.

PowerPick further argued that it was not reselling

lottery tickets, but was merely acting as the represen-

tative or agent of its customers in buying the tickets.

The Attorney General argued that the federal case

cited by PowerPick was not comparable to the present

situation because Michigan lottery law is different from

federal lottery law.

PowerPick has also described other services that it allegedly provides for

its customers, including organizing the pools, sending out confirmation

certificates, checking tickets for winnings, mailing out winnings statements,

and overseeing the collection and distribution of all winnings.

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PowerPick then argued that the Attorney General’s

complaint should be dismissed on the basis of the

doctrine of laches. This argument was premised on

extensive correspondence among PowerPick, its attor-

ney, the lottery commissioner, the Bureau of State

Lottery, and the Attorney General’s office. That corre-

spondence had begun in November 2001, when Power-

Pick was first contemplating starting its Michigan

operations. At that time, a consultant for PowerPick

had sent Michigan’s acting lottery commissioner a

package of materials regarding PowerPick’s proposed

business operations. In the ensuing correspondence,

PowerPick explained why it should be allowed to oper-

ate in Michigan, and the acting lottery commissioner,

Bureau of State Lottery, and the Attorney General’s

office wrote back to PowerPick, asking for various

information, expressing concerns, and giving explana-

tions. PowerPick pointed to certain statements within

some of the letters that, it argued, showed that the

officials had led it to believe that its operation would not

be illegal in Michigan. For instance, PowerPick pointed

out that in one letter, the acting lottery commissioner

had seemed to compare PowerPick’s proposed opera-

tions to those of a legal lottery club. PowerPick also

pointed to a letter in which one of the Michigan officials

stated that PowerPick’s “innovative lottery ticket pool-

ing and agency relationship is very interesting.” Finally,

PowerPick pointed to a news report that discussed

PowerPick’s proposed operations and announced that

“state lawyers haven’t found anything wrong with

PowerPick.” The Attorney General argued that Power-

Pick could not prevail on its laches defense because it

had shown no prejudice.

Lastly, PowerPick argued that the Attorney General

had acted with unclean hands and that the Attorney

General’s actions violated the guarantee of equal pro-

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tection because other similarly situated lottery clubs

were operating in Michigan and had not been targeted

by the Attorney General. The Attorney General’s rep-

resentative responded that these other lottery clubs

were operating legally.

Following the parties’ arguments, the circuit court

ruled from the bench:

All right.... [T]he Court does agree with [the Attorney

General] that the [federal] Arizona case does not necessar-

ily control this case and was brought by the postal service,

it’s Arizona law, and also that it’s the legal meaning of the

facts.

However, the Court’s of the opinion that there are a

number of factual issues here which will have to be decided

at trial and that defendant here has properly pled its

affirmative defenses.

The Attorney General argues that the circuit court

erred by denying his motion for summary disposition

brought pursuant to MCR 2.116(C)(10). We agree with

the Attorney General’s argument insofar as it relates to

his nuisance claim.

We review de novo the circuit court’s decision on a

motion for summary disposition. Dressel v Ameribank,

468 Mich 557, 561; 664 NW2d 151 (2003). Summary

disposition of all or part of a claim or defense may be

granted when, “[e]xcept as to the amount of damages,

there is no genuine issue as to any material fact, and the

moving party is entitled to judgment or partial judg-

ment as a matter of law.” MCR 2.116(C)(10). “A genuine

issue of material fact exists when the record, giving the

benefit of reasonable doubt to the opposing party, leaves

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open an issue upon which reasonable minds might

differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665

NW2d 468 (2003).

We conclude that, at the time of the circuit court’s

ruling in this case, there remained no genuine issue of

material fact that would have precluded the grant of

summary disposition under MCR 2.116(C)(10) with

respect to the Attorney General’s nuisance claim. Pow-

erPick and the circuit court were simply incorrect in

their belief that the evidence presented disputed issues

of fact. Indeed, the circuit court’s ruling was internally

inconsistent on this very issue. On the one hand, the

circuit court agreed with PowerPick that what was at

issue was “the legal meaning of the facts.” But on the

other hand, the court stated that “there are a number of

factual issues.” Of critical importance, the circuit court

never identified exactly what these “factual issues”

were. Nor did PowerPick identify any actual factual

disputes.

PowerPick continues to maintain that “[d]etermin-

ing the meaning of the facts at issue is a quintessential

jury question.” But PowerPick is clearly confused about

what constitutes a factual dispute and about the proper

role of a jury. In general, a factual dispute exists when

there is conflicting evidence concerning what happened,

when something happened, where something happened,

how something happened, who was involved, or some

other similar factual inquiry. In this case, a jury ques-

tion would have been presented, for instance, if there

had been conflicting evidence concerning how defen-

dant’s business actually operated. But no such conflict-

ing evidence was presented.

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The proper role of a jury is to decide what the facts

are—not what the facts mean. As aptly noted by the

United States Court of Appeals for the Fourth Circuit in

Atlantic Purchasers, Inc v Aircraft Sales, Inc, 705 F2d

712, 719 (CA 4, 1983):

Ajury...does not directly determine whether a litigant

has contravened the statutes. Rather, the jury’s function is to

find the facts, and based on the jury’s findings the court must

then determine as a matter of law whether the defendant’s

conduct violated [the statutes]. [Quotation marks and cita-

tions omitted.]

The Attorney General correctly argues that what is at

issue here is the legal meaning of the undisputed facts.

The critical facts in this case consist of PowerPick’s own

description of its business operations in its player hand-

book, on its website, in its newsletters, in the deposition

testimony of its owners and employees, and in the various

other documents presented to the circuit court. The

operations described in these materials and documents

are somewhat complicated, but there is no dispute con-

cerning what these materials and documents actually say

or mean. The only question presented for resolution was

whether PowerPick’s operations—as described in the un-

controverted materials and documents presented to the

circuit court—fell within the scope of the statutes cited by

the Attorney General. This was a purely legal question,

not a factual one. See People v Rutledge, 250 Mich App 1,

4; 645 NW2d 333 (2002) (observing that “[w]hether con-

duct falls within the statutory scope of a criminal statute

is a question of law that is reviewed de novo on appeal”).

We also conclude that because PowerPick’s operations

constituted an enjoinable nuisance, the Attorney General

was entitled to judgment as a matter of law with respect

his nuisance claim.

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We first conclude that PowerPick’s PowerPool scheme

contemplates the placement of bets under MCL 750.301,

that PowerPick “registers” these bets in violation of MCL

750.304, and that PowerPick possesses “memoranda of

. . . bet[s]” in violation of MCL 750.306. In a typical office

lottery club, all the money contributed by the participants

is used to purchase commonly held lottery tickets. In

other words, each member of a typical office lottery club is

simply playing the Michigan Lottery—a legal lottery au-

thorized by Michigan law, see Const 1963, art 4, § 41; MCL

432.1 et seq.—albeit in concert with the other members of

the club. As such, each participant in a typical office

lottery club places only one bet—a legal bet that the

underlying lottery ticket or tickets will win. In contrast,

each PowerPick customer who participates in a PowerPool

actually places two bets each time he or she purchases

lottery tickets through the PowerPick scheme. As will be

explained more fully hereinafter, the customer places a

legal bet on the underlying lottery tickets that PowerPick

purchases for that customer’s particular pool. But the

customer also places a second bet, wagering that Power-

Pick will randomly assign him or her to a winning pool. It

is this second bet that renders PowerPick’s PowerPool

scheme an illegal betting operation.

PowerPick admits that it uses only 51 percent of the

money it collects from its customers to buy lottery

tickets. In other words, PowerPick’s customers pay an

amount substantially in excess of the face value of the

lottery tickets that PowerPick actually purchases. One

reason for this is certainly the customers’ desire to pay

for PowerPick’s alleged services.

But we conclude that

As explained previously, PowerPick asserts that it provides several

valuable services to its customers, such as eliminating the need for its

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another reason for these payments substantially in

excess of the face value of the lottery tickets is to buy the

chance of being assigned to one or more winning pools

by PowerPick.

PowerPick admits that it uses a computer system to

randomly assign each customer to a particular pool of

the type that he or she has chosen. These random

assignments plainly introduce an additional element of

chance into the PowerPick scheme. By way of example,

assume that there are 200 PowerPick customers at any

given time who have chosen the Keno PowerPool op-

tion. Further assume that each of these customers has

purchased only one share. Because the Keno Power-

Pools consist of 10 shares each, PowerPick would create

20 Keno PowerPools with 10 shares each, randomly

assigning each of the 200 customers to one of these

pools. Rather than purchasing one large set of Keno

tickets to be shared equally among all 200 customers,

PowerPick will purchase 20 small sets of Keno tickets,

and will assign one of these small sets to each of the 20

pools. Thus, any individual customer who has chosen

the Keno PowerPool option will have a chance of

sharing in a winning ticket only within the confines of

the small set of Keno tickets held by his or her 10-share

pool. In contrast, if PowerPick had purchased one large

set of Keno tickets to be shared equally among all 200

customers, any individual customer would have had a

much greater chance of sharing in a winning Keno

ticket.

As can be seen, the random assignment of customers

to the individual PowerPools clearly injects an addi-

customers to wait in line, holding the lottery tickets in trust, ensuring

that none of the lottery tickets is lost, sending out confirmation certifi-

cates, checking the tickets for winnings, mailing out winnings state-

ments, and overseeing the collection and distribution of all winnings.

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tional element of uncertainty into a customer’s chance

of sharing in a winning ticket. PowerPick’s customers

plainly “bet” on the outcome of these random comput-

erized assignments. “ ‘Betting in common speech

means the putting of a certain sum of money or other

valuable thing at stake on the happening or not hap-

pening of some uncertain event.’ ” Michigan ex rel

Comm’r of State Police v One Helix Game, 122 Mich App

148, 155; 333 NW2d 24 (1982), quoting Shaw v Clark,

49 Mich 384, 388; 13 NW 786 (1882). PowerPick’s

assignment of a customer to one PowerPool over an-

other is clearly an “uncertain event” upon which money

is put at stake. Customers do not only bet that the

lottery tickets purchased by PowerPick will win; they

also bet that their specific pool will hold the winning

ticket or tickets. We conclude that a portion of the

money paid by each PowerPick customer is put at stake

in the hope that the customer will be randomly assigned

to at least one pool that holds a winning ticket. Such a

scheme is clearly encompassed within the definition of

“betting.” One Helix Game, 122 Mich App at 155.

Pursuant to MCL 750.301, “[a]ny person or his or her

agent or employee who, directly or indirectly, takes,

receives, or accepts...any money or valuable thing

with the agreement, understanding or allegation that

any money or valuable thing will be paid or delivered to

any person...contingent...upon the happening of

any event not known by the parties to be certain, is

guilty of a misdemeanor....”Thelegislative goal un-

derlying MCL 750.301 was the suppression of betting.

Michigan ex rel Comm’r of State Police v Nine Money

Fall Games, 130 Mich App 414, 419; 343 NW2d 576

(1983). The statute prohibits private betting between

consenting parties, and is not limited to combating only

the effects of organized and commercialized gambling.

Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App

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318, 325-326; 256 NW2d 776 (1977). After applying the

plain statutory language, it is clear to us that Power-

Pick’s PowerPools violate MCL 750.301. As discussed

previously, PowerPick accepts money from its custom-

ers not only with the express understanding that lottery

tickets will be purchased, but also with the express

understanding that a valuable prize will be paid out to

any customer who is randomly assigned to a pool

holding a winning lottery ticket. MCL 750.301 directly

prohibits the acceptance of money on the happening or

not happening of such an uncertain event.

PowerPick also “registers” these bets in violation of

MCL 750.304. Pursuant to MCL 750.304, “[a]ny person or

his or her agent or employee...whoregisters bets...is

guilty of a misdemeanor....”Wehave already explained

that PowerPick accepts “bets” when its customers put

money at stake for the chance of being randomly assigned

to at least one pool that holds a winning ticket. See One

Helix Game, 122 Mich App at 155. We conclude that by

accepting these bets from its customers, randomly assign-

ing its customers to pools in exchange for their bets, and

sending out written confirmation certificates verifying

these random assignments, PowerPick “registers bets” in

violation of MCL 750.304.

We also conclude that PowerPick possesses “memo-

randa of...bet[s]” in violation of MCL 750.306. Under

MCL 750.306, “[a]ll...memoranda of any...bet,

manifold, or other policy or pool books or sheets

are...declared a common nuisance and the possession

of 1 or more of those items is a misdemeanor....”The

It is irrelevant that the underlying Michigan Lottery tickets are, them-

selves, issued as part of a legal lottery. See People v Weithoff, 51 Mich 203,

212; 16 NW 442 (1883). Even when a game is itself legal, “the betting upon

thegame...constitutes gaming, and those [who] game or gamble...thus

bet.” Id.

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written confirmation certificates sent by PowerPick to

its customers are, in essence, receipts. The certificates

verify that the customers have been randomly assigned

to one or more pools in exchange for their bets. Power-

Pick’s confirmation certificates, which memorialize

these betting transactions, therefore constitute “memo-

randa of...bet[s]” within the meaning of MCL

750.306. See People v Taylor, 89 Mich App 238, 242; 280

NW2d 500 (1979) (observing that MCL 750.306 prohib-

its the “possession of various written memoranda used

in gambling operations”).

PowerPick also violates MCL 432.27 by reselling

lottery tickets to its customers and by charging a price

greater than that fixed by the Michigan Lottery com-

missioner. MCL 432.27(1) provides:

A person shall not sell a ticket or share at a price greater

than that fixed by rule of the commissioner. A person other

than a licensed lottery sales agent shall not sell lottery

tickets or shares. This section shall not be construed to

prevent a person from giving lottery tickets or shares to

another as a gift.

PowerPick argues that it is merely an “agent” for its

customers, and that it buys Michigan Lottery tickets

directly on their behalf. Indeed, PowerPick asserts that

because of this agency relationship, title in the lottery

tickets passes directly from the state of Michigan to the

individual customers at the time the tickets are pur-

chased. We are unconvinced by PowerPick’s argument

in this regard, and conclude that PowerPick “sell[s]

lottery tickets or shares” to its customers within the

meaning of MCL 432.27(1). We find particularly persua-

sive the reasoning of the Attorney General in OAG,

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1985-1986, No 6392, pp 382, 384 (October 7, 1986),

which addressed a similar question arising under MCL

432.27(1):

The final sentence of [MCL 432.27(1)], exempting gifts

of lottery tickets, is of particular significance and indicates

a clear legislative intent that the prohibition against sales

by persons who are not licensed agents is to be read

broadly. The fact that the Legislature expressly excluded

gift transactions from the prohibition set forth in § 27(1)

demonstrates that the Legislature viewed this prohibition

as being sufficiently broad so as to include even gifts had

they not been expressly excluded by that final sentence. If

third-party transfers in the form of gifts would be barred in

the absence of the express exemption in § 27(1), certainly

for-profit third-party transfers would also be barred.

This conclusion is further supported by application of

the well-established maxim of statutory construction

known as the expressio uniu[s] est exclusio alterius, i.e.,

that express mention in a statute of one thing implies the

exclusion of other similar things. See, e.g., Stowers v

Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). The

fact that the Legislature expressly exempted third-party

transfers of lottery tickets which take the form of a gift, but

did not expressly exempt for-profit third-party transfers

such as that proposed here, manifests the legislative intent

that the latter type of transaction not be permitted. [Em-

phasis added.]

“Although Attorney General opinions are not bind-

ing on this Court, they can be persuasive authority.”

Lysogorski v Bridgeport Charter Twp, 256 Mich App 297,

301; 662 NW2d 108 (2003); see also Williams v Rochester

Hills, 243 Mich App 539, 557; 625 NW2d 64 (2000). We

agree with the Attorney General’s observation that the

Legislature must have viewed the general prohibition of

MCL 432.27(1) as sufficiently broad to encompass even

gifts. Otherwise, if the Legislature had believed that gifts

already fell outside the scope of the general prohibition,

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the final sentence of MCL 432.27(1) would have been

superfluous and unnecessary. It is a basic tenet of statu-

tory construction that no language in a statute should be

interpreted as unnecessary surplusage. In re Kiogima,

189 Mich App 6, 13; 472 NW2d 13 (1991); see also Apsey

v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007).

Indeed, courts presume that every statutory word and

phrase has some meaning and must give effect to each

provision of the statute if possible. Danse Corp v Madison

Hts, 466 Mich 175, 182; 644 NW2d 721 (2002). “It is

presumed that the Legislature is aware of the rules of

statutory construction and has drafted its enactments

accordingly.” Michigan Employment Security Comm v

Westphal, 214 Mich App 261, 264; 542 NW2d 360 (1995).

In light of this authority, it is clear that the Legisla-

ture would not have included the final sentence of MCL

432.27(1) if that provision had constituted mere sur-

plusage. And if the Legislature believed that the general

prohibition of MCL 432.27(1) was sufficiently broad to

encompass gifts in the absence of the final sentence, it

necessarily follows that the general prohibition of MCL

432.27(1) encompasses “for-profit third-party trans-

fers,” as explained in OAG, 1985-1986, No 6392, p 384.

We agree with the reasoning of OAG, 1985-1986, No

6392, and therefore find it persuasive on this issue. See

Risk v Lincoln Charter Twp Bd of Trustees, 279 Mich

App 389, 398-399; 760 NW2d 510 (2008).

As noted in OAG, 1985-1986, No 6392, p 384, the

Legislature intended “that the prohibition against sales

by persons who are not licensed agents is to be read

broadly.” It is undisputed that PowerPick is not “a

licensed lottery sales agent” and that PowerPick oper-

ates a for-profit business. When PowerPick accepts

payments substantially in excess of the cost of the

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lottery tickets it purchases, and then transfers those

lottery tickets to its paying customers, it is engaged in

what the Attorney General has described as “for-profit

third-party transfers[.]” Id. We therefore conclude that

PowerPick “sell[s] lottery tickets or shares” in violation

of MCL 432.27(1).

Having determined that PowerPick “sell[s]” lottery

tickets to its customers, it cannot be seriously disputed

that PowerPick sells them “at a price greater than that

fixed by rule of the commissioner” within the meaning

of MCL 432.27(1). Indeed, although PowerPick de-

scribes itself as a simple “lottery club,” it admits that it

uses only 51 percent of the money collected from its

customers to buy lottery tickets and that its customers

pay an amount substantially in excess of the face value

of the lottery tickets that are ultimately purchased. No

further proof is necessary for us to conclude that

PowerPick sells lottery tickets to its customers “at a

price greater than that fixed by rule of the commis-

sioner.” MCL 432.27(1).

In addition, PowerPick’s periodic random drawings

for Michigan Lottery scratch-off tickets constitute an

illegal lottery within the meaning of MCL 750.372, and

PowerPick’s MegaPools constitute an illegal gift enter-

prise within the meaning of MCL 750.372.

As an initial matter, we note that neither the term

“lottery” nor the term “gift enterprise” is defined in

MCL 750.372. We must give statutory words and

phrases their commonly understood meanings. MCL

8.3a; Lewandowski v Nuclear Mgt Co, LLC, 272 Mich

App 120, 126; 724 NW2d 718 (2006). When a term is not

defined by statute, it is appropriate for this Court to

look to dictionary definitions. People v Stone, 463 Mich

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558, 563; 621 NW2d 702 (2001); Stocker v Tri-

Mount/Bay Harbor Bldg Co, Inc, 268 Mich App 194,

199; 706 NW2d 878 (2005). “[B]ut technical words and

phrases, and such as may have acquired a peculiar and

appropriate meaning in the law, shall be construed and

understood according to such peculiar and appropriate

meaning.” MCL 8.3a; see also Bay Co Prosecutor v

Nugent, 276 Mich App 183, 190; 740 NW2d 678 (2007).

It is also appropriate for us to consider how a word or

phrase has been defined in the previous caselaw. See

Roby v Mt Clemens, 274 Mich App 26, 30; 731 NW2d

494 (2007).

The word “lottery” is “commonly defined as ‘a gam-

bling game or method of raising money in which a large

number of tickets are sold and a drawing is held for

prizes,’ ‘a drawing of lots,’ and ‘any happening or

process that is or appears to be determined by

chance....’”FACE Trading, Inc v Dep’t of Consumer

& Industry Services, 270 Mich App 653, 666; 717 NW2d

377 (2006), quoting Random House Webster’s College

Dictionary (1997). Our Supreme Court has explained

that “the essentials of a lottery [a]re ‘consideration,

prize, and chance.’ ” Rohan v Detroit Racing Ass’n, 314

Mich 326, 344; 22 NW2d 433 (1946), quoting Glover v

Malloska, 238 Mich 216, 219; 213 NW 107 (1927); see

also People v Welch, 269 Mich 449, 452; 257 NW 859

(1934). However, “[w]hile consideration, prize, and

chance are often common factors found in a lot-

tery,...theterm ‘lottery’ must be construed broadly.”

FACE Trading, Inc, 270 Mich App at 667. “ ‘[T]he word

“lottery” must be construed in the popular sense, with

the view of remedying the mischief intended to be

prevented, and to suppress all evasions for the continu-

ance of the mischief.’ ” Id., quoting People v McPhee,

139 Mich 687, 690; 103 NW 174 (1905). “Thus, while

the Supreme Court has indicated that the essentials of

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a lottery generally are consideration, prize, and chance,

these essentials cannot be used to frustrate the plain

and ordinary meaning of the word ‘lottery.’ ” FACE

Trading, Inc, 270 Mich App at 668.

In Sproat-Temple Theatre Corp v Colonial Theatrical

Enterprise, Inc, 276 Mich 127; 267 NW 602 (1936), our

Supreme Court considered the traditional elements of

consideration, prize, and chance to determine whether

a drawing held at the defendants’ theaters constituted a

“lottery” under Michigan law. Each patron who pur-

chased an admission ticket at the defendants’ theaters

was “given a coupon ticket bearing duplicate num-

bers....” Id. at 128. When the patron entered the

theater, “one-half of each coupon ticket [was] dropped

in a barrel by the purchaser and the other half [was]

retained by him[.]” Id. “[A]t an advertised time the

barrel containing the coupon tickets was taken upon

the stage of the theatre and several tickets were with-

drawn therefrom. The person holding the coupon or

stub with the number corresponding to the number on

the ticket drawn from the barrel was given a valuable

money prize.” Id. at 128-129.

The plaintiffs argued that the drawings constituted

an enjoinable “lottery” within the meaning of what is

now MCL 750.372. Sproat-Temple Theatre, 276 Mich at

129. The defendants countered, contending that be-

cause each patron received a coupon ticket at no addi-

tional cost, there could be no “lottery.” Id. In particular,

the defendants argued that because “the patron pays

nothing for a chance to receive the prize, no consider-

ation runs from the public, and, therefore, the [lottery]

statute is not violated.” Id.

Our Supreme Court disagreed with the defendants,

observing that “ ‘while the patrons may not pay, and the

[defendants] may not receive, any direct consideration

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[for the coupon tickets], there is an indirect consider-

ation paid and received. The fact that prizes...areto

be distributed will attract persons to the theatres who

would not otherwise attend. In this manner those

obtaining prizes pay consideration for them, and the

theatres reap a direct financial benefit.’ ” Id. at 130-

131, quoting Society Theatre v City of Seattle, 118 Wash

258, 260; 203 P 21 (1922). Accordingly, the Supreme

Court affirmed the circuit court’s order enjoining the

defendants’ scheme as an illegal lottery. Sproat-Temple

Theatre, 276 Mich at 131.

The next year, a similar fact pattern was presented in

United-Detroit Theaters Corp v Colonial Theatrical En-

terprise, Inc, 280 Mich 425; 273 NW 756 (1937). Our

Supreme Court again looked to the traditional elements

of consideration, prize, and chance—this time for the

purpose of determining whether a “screeno” game

played at the defendants’ theaters constituted a “lot-

tery” within the meaning of what is now MCL 750.372.

United-Detroit Theaters, 280 Mich at 427-429. A free

screeno card was given to each patron who bought a

ticket for admission to one of the defendants’ theaters.

Id. at 427. But unlike the coupon tickets at issue in

Sproat-Temple Theatre, the screeno cards in United-

Detroit Theaters were “not confined to purchasers of

admission tickets....” United-Detroit Theaters, 280

Mich at 427. Instead, free screeno cards were also

available “upon request to any person in the foyer of the

theater or to persons on the sidewalk in front of the

theater.” Id. Each screeno card contained a series of

random numbers, which were arranged in rows and

columns. The first person to match certain of the

numbers on his or her screeno card with those displayed

on the theater screen won a prize. Id.

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The plaintiff, a competing theater owner, argued that

the screeno game constituted an enjoinable “lottery”

under the statute. Id. at 428. Although the screeno

tickets were distributed for free and were available to

patrons and nonpatrons alike, the Supreme Court re-

lied on Sproat-Temple Theatre to find that the element

of consideration had been established, observing that

“the distribution of the tickets unquestionably at-

tracted others to the theater who otherwise would not

have attended and in this way the theater owner

profited thereby. This is a sufficient consideration.” Id.

at 429.

Also unlike the facts of Sproat-Temple Theatre,a

small amount of skill was apparently necessary to play

the screeno game at issue in United-Detroit Theaters.

Nevertheless, the United-Detroit Theaters Court found

that the screeno game retained the element of chance,

stating that “[a]n examination of the method used in

the conducting of the game must convince any one that

the element of skill as compared with the element of

chance is slight.” Id.

In light of this authority, we are compelled to con-

clude that PowerPick’s periodic drawings for Michigan

Lottery scratch-off tickets constitute a “lottery” within

the meaning of MCL 750.372. PowerPick, through its

newsletter, periodically invites its customers to partici-

pate in drawings for Michigan Lottery scratch-off tick-

ets. As explained previously, one such contest asked

PowerPick’s customers to count the “Shamrocks hid-

den” within the newsletter and send in their count. The

newsletter announced that “[t]he first three randomly

drawn with the correct answer will each win 10 of the

$10 Take Home Millions scratch tickets.” In another

recent game, newsletter readers were asked to count

the total number of times the word “pumpkin” ap-

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peared within the text and to submit their count. The

newsletter went on to state:

Anytime you see that word within the pages of this

newsletter, whether it’s singular or plural, capital letters or

lower case, part of another word or standing

alone...count it.

***

Remember that this is a bi-monthly drawing, so all

entries received by November 30, 2009, will be eligible to

win. On December 1, 2009, the winners will be randomly

drawn from those who submitted the correct answer. The

first 3 drawn with the correct answer will each win $100

worth of the Classic Casino instant tickets and you’ll be

well on your way to scratching off some winners. There is

no purchase necessary to win, but you must be 18 years of

age.

PowerPick’s periodic drawings for Michigan Lot-

tery scratch-off tickets clearly fall within the defini-

tion of a “lottery.” These periodic drawings are not

only “ ‘a drawing of lots,’ ” but are also a “ ‘process

that is...determined by chance....’”FACE Trad-

ing, Inc, 270 Mich App at 666, quoting Random House

Webster’s, supra. Moreover, these periodic drawings

include all three traditional elements of a lottery.

With respect to the element of consideration, al-

though the periodic drawings are widely announced

in PowerPick’s newsletter and are available at no addi-

tional cost to the newsletter’s readers, they are clearly

used to induce people to become PowerPick customers or

to remain PowerPick customers. In other words, the

periodic drawings for Michigan Lottery scratch-off tickets

“unquestionably attracted others to [PowerPick] who

otherwise would not have [become PowerPick customers]

and in this way [PowerPick] profited thereby. This is a

sufficient consideration.” United-Detroit Theaters, 280

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Mich at 429; see also Sproat-Temple Theatre, 276 Mich

at 130-131. With respect to the element of chance, it is

true that some modicum of skill may be required for an

individual to accurately count the “Shamrocks hidden”

within the newsletter or the number of times the word

“pumpkin” occurs within the text. However, despite the

fact that an individual must first submit an accurate

count to participate, PowerPick ultimately awards the

scratch-off tickets on the basis of a random drawing.

Accordingly, the drawings retain the essence of a game

of chance, and “the element of skill as compared with

the element of chance is slight.” United-Detroit Thea-

ters, 280 Mich at 429. PowerPick, itself, admits the third

element—that a prize is awarded to the winners of the

random drawings. Lest there be any doubt that a

scratch-off lottery ticket can constitute a prize, we note

that although an unscratched instant lottery ticket

generally has “little or no actual monetary worth,” it

certainly can have a great deal of “potential value....”

See McDougal v McDougal, 451 Mich 80, 82; 545 NW2d

357 (1996) (emphasis in original). This, we think, is all

that is required to constitute a prize. We conclude that

PowerPick’s periodic random drawings for Michigan

Lottery scratch-off tickets are a “lottery” within the

meaning of MCL 750.372.

The term “gift enterprise” has been used for more

than 100 years in Michigan’s statutes, see, e.g., McPhee,

139 Mich at 688-689; People v Reilly, 50 Mich 384,

387-388; 15 NW 520 (1883), and indeed appears to have

acquired a particular meaning in the law, see MCL 8.3a.

Black’s Law Dictionary (7th ed) defines “gift enter-

prise” as, among other things, “[a] merchant’s scheme

to induce sales...bygiving buyers tickets that carry a

chance to win a prize.” As noted previously, Power-

Pick’s MegaPools are announced as “a FREE bonus

and...in addition to each player’s PowerPool.” Each

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PowerPick customer is automatically entered in one of

the MegaPools for each Mega Millions drawing, as long

as he or she is a participant in one of the main

PowerPool packages.

These MegaPools, like the periodic drawings for

scratch-off tickets described previously, are clearly used

to induce people to become PowerPick customers or to

remain PowerPick customers. Each PowerPick cus-

tomer is entered into one of the MegaPools as “a FREE

bonus,” thereby receiving shares in a pool of Mega

Millions tickets at no additional cost. PowerPick’s

MegaPools plainly constitute “[a] merchant’s scheme to

induce sales...by giving buyers tickets that carry a

chance to win a prize.” Black’s Law Dictionary (7th ed).

Therefore, we conclude that the MegaPools are a “gift

enterprise” within the meaning of MCL 750.372.

Having determined that PowerPick’s periodic draw-

ings for Michigan Lottery scratch-off tickets constitute

a “lottery” and that PowerPick’s MegaPools constitute

a “gift enterprise,” we turn to the question whether

PowerPick violates the provisions of MCL 750.372 by

conducting and promoting these schemes. We conclude

that it does.

It is unlawful in this state to “[s]et up or pro-

mote...anylottery or gift enterprise for money” and

to “[a]id, either by printing or writing, or in any way be

concerned in the setting up, managing, or drawing of a

lottery or gift enterprise.” MCL 750.372(1)(a) and (c).

PowerPick violates these provisions through the opera-

tion of its periodic drawings for Michigan Lottery

scratch-off tickets and its MegaPools. First, both the

periodic drawings for scratch-off tickets and the Mega-

Pools violate MCL 750.372(1)(a). We have already noted

that these enterprises are intended to entice people to

become or to remain paying customers of PowerPick.

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Therefore, it cannot be seriously disputed that they are

“[s]et up or promote[d]...for money” within the

meaning of MCL 750.372(1)(a). Furthermore, both the

periodic drawings for scratch-off tickets and the Mega-

Pools were devised and are operated by PowerPick.

Accordingly, by “setting up” and “managing” the peri-

odic drawings for scratch-off tickets and the MegaPools,

PowerPick unquestionably violates MCL 750.372(1)(c)

as well.

As our Supreme Court observed 40 years ago in

Attorney General, ex rel Optometry Bd of Examiners v

Peterson, 381 Mich 445, 465-466; 164 NW2d 43 (1969):

At common law, acts in violation of law constitute a

public nuisance. Harm to the public is presumed to flow

from the violation of a valid statute enacted to preserve

public health, safety and welfare. The attorney general,

acting on behalf of the people, is a proper party to bring an

action to abate a public nuisance or restrain unlawful acts

which constitute a public nuisance.

PowerPick’s various gaming schemes violate the

terms of MCL 432.27(1), MCL 750.301, MCL 750.304,

MCL 750.306, and MCL 750.372. Michigan’s lottery and

We fully acknowledge that the prohibition of lotteries and gift

enterprises contained in MCL 750.372(1) “does not apply to a lottery or

gift enterprise conducted by a person as a promotional activity that is

clearly occasional and ancillary to the primary business of that person.”

MCL 750.372(2). However, a lottery or gift enterprise is not a “promo-

tional activity” within the meaning of the statute if it “may be entered by

purchasing a product or service for substantially more than its fair

market value.” Id. Because PowerPick’s customers pay “substantially

more than [the] fair market value” of the lottery tickets that PowerPick

ultimately purchases, we conclude that the periodic drawings for scratch-

off tickets and the MegaPools are not a “promotional activity.” Id.

Accordingly, these enterprises are not exempt from the provisions of MCL

750.372(1). MCL 750.372(2).

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gambling statutes were validly enacted to preserve the

public safety, morals, and welfare. See Parkes v Record-

er’s Court Judge, 236 Mich 460, 466-467; 210 NW 492

(1926); see also Oakland Co Prosecutor, 76 Mich App at

330. Indeed, “[t]he Legislature has the right to conclude

that gambling is injurious to the morals and welfare of

the people and it is clearly within the scope of the state

police power to suppress gambling in all of its forms.”

Id. at 326. Because PowerPick’s business activities

violate these validly enacted statutes, “[h]arm to the

public is presumed to flow” from PowerPick’s opera-

tions. Peterson, 381 Mich at 465. We conclude that

PowerPick’s business operations, taken as a whole,

constitute a public nuisance. Id.

We also conclude that PowerPick’s office in Comstock

Park and “the furniture, fixtures, and contents” of that

office constitute a nuisance as a matter of law. The

Legislature has declared that “[a]ny building, vehicle,

boat, aircraft, or place used for the purpose of...gam-

bling” is an enjoinable nuisance. MCL 600.3801. More-

over, “the furniture, fixtures, and contents of the build-

ing, vehicle, boat, aircraft, or place” are also declared to

be an enjoinable nuisance. Id. The Legislature has

specifically authorized the Attorney General to “main-

tain an action for equitable relief in the name of the

state of Michigan...to abate said nuisance and to

perpetually enjoin any person, his servant, agent, or

employee, who shall own, lease, conduct or maintain

such building, vehicle, boat, aircraft or place, from

permitting or suffering such building, vehicle, boat, or

aircraft or place..., or any other building, vehicle,

boat, aircraft or place conducted or maintained by him

to be used for [gambling].” MCL 600.3805.

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It is first necessary to determine whether Power-

Pick’s operations constitute “gambling” within the

meaning of MCL 600.3801. We acknowledge that the

word “gambling” is not defined in MCL 600.3801.

However, at common law, the definition “require[d] the

presence of three elements: (1) price or consideration,

(2) chance, and (3) prize or reward.” Automatic Music &

Vending Corp v Liquor Control Comm, 426 Mich 452,

457; 396 NW2d 204 (1986).

We have no trouble con-

cluding that PowerPick engages in “gambling” within

the meaning of MCL 600.3801. We determined earlier

that PowerPick’s PowerPool scheme is a variety of

“betting,” One Helix Game, 122 Mich App at 155, and

that it is prohibited under MCL 750.301. MCL 750.301,

which prohibits betting on uncertain events, MCL

750.304, which prohibits among other things “register-

ing bets,” and MCL 750.306, which prohibits among

other things possessing “memoranda of...bet[s],” are

all contained within Chapter 44 of the Penal Code, MCL

750.301 et seq., which is entitled “Gambling.” The

particular placement of these provisions in the overall

statutory scheme suggests that betting, registering

bets, and keeping memoranda of bets are all forms of

“gambling.” See Tallman v Dep’t of Natural Resources,

421 Mich 585, 600; 365 NW2d 724 (1984). Moreover, our

Supreme Court has recognized that it would not be “an

inaccurate or inappropriate use of language if all bet-

ting for money were to be spoken of and considered as

gaming or gambling.” People v Weithoff, 51 Mich 203,

210; 16 NW 442 (1883). We are persuaded that Power-

The Automatic Music & Vending Court actually construed the word

“gaming” rather than the word “gambling.” Automatic Music & Vending,

426 Mich at 457. However, the Court explained that “the terms ‘gaming’

and ‘gambling’ are synonymous, [and] are used interchangeably.” Id.at

457 n 1; see also People v Weithoff, 51 Mich 203, 210-211; 16 NW 442

(1883) (using the terms “gaming” and “gambling” interchangeably).

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Pick’s betting scheme plainly constitutes a variety of

“gambling” within the meaning of MCL 600.3801.

We are similarly persuaded that PowerPick’s periodic

drawings for Michigan Lottery scratch-off tickets con-

stitute “gambling” under MCL 600.3801. We previously

concluded that PowerPick’s periodic drawings for

scratch-off tickets constitute a “lottery.” The common-

law elements of “gaming” or “gambling”—price or

consideration, chance, and prize or reward, Automatic

Music & Vending, 426 Mich at 457—are remarkably

similar to the common-law elements of a “lottery”—

consideration, prize, and chance, Rohan, 314 Mich at

344; Glover, 238 Mich at 219. Indeed, our Supreme

Court has described a lottery as “ ‘a species of gam-

bling....’”Rohan, 314 Mich at 344 (citation omitted);

see also FACE Trading, Inc, 270 Mich App at 666

(observing that “ ‘[l]ottery’ is commonly defined as ‘a

gambling game or method’ ”). We conclude that Power-

Pick’s periodic drawings for scratch-off lottery tickets

constitute “gambling” within the meaning of MCL

600.3801.

All that remains is to determine whether PowerPick

“owns, leases, conducts, or maintains” “[a]ny building,

vehicle, boat, aircraft, or place used for the purpose

of...gambling” within the meaning of MCL 600.3801.

We find that it does. It is undisputed that PowerPick

leases or otherwise maintains an office in Comstock

Park from which its Michigan business operations are

carried out. PowerPick receives payments from Power-

Pool participants at its Comstock Park office, and

accordingly accepts bets there. See State, ex rel Wash-

tenaw Co Prosecuting Attorney v Western Union Tel Co,

336 Mich 84, 89; 57 NW2d 537 (1953). This is confirmed

by PowerPick’s own website, which directs potential

PowerPick customers to “mail in your order” to “4673

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West River Drive NE, Comstock Park, MI 49321.”

Moreover, PowerPick unquestionably manages and pro-

motes its periodic drawings for Michigan Lottery

scratch-off tickets from its Comstock Park office. Thus,

even if PowerPick does not hold the actual drawings at

its office, it nonetheless promotes its lottery from that

place. See People v Elliott, 74 Mich 264, 268; 41 NW 916

(1889). We conclude that PowerPick’s Comstock Park

office is a building or place “used for the purpose

of...gambling” under MCL 600.3801. Accordingly,

PowerPick’s Comstock Park office, as well as “the

furniture, fixtures, and contents” of that office, consti-

tute an enjoinable nuisance. MCL 600.3801.

The Attorney General was entitled to judgment as a

matter of law with respect to his nuisance claim. Not only

do PowerPick’s betting, lottery, and gift enterprise

schemes constitute an enjoinable public nuisance under

the reasoning of Peterson, 381 Mich at 465,

but Power-

Pick’s Comstock Park office, as well as “the furniture,

fixtures, and contents” of that office, constitute an

enjoinable nuisance under MCL 600.3801.

III

PowerPick raised several affirmative defenses to the

We fully acknowledge that several of the statutes violated by Power-

Pick, including MCL 750.301, MCL 750.304, MCL 750.306, and MCL

750.372, are criminal in nature and are contained in the Penal Code,

MCL 750.1 et seq. In general, equity will not enjoin the commission of a

crime because a chancellor has no criminal jurisdiction. United-Detroit

Theaters, 280 Mich at 429-430; see also Western Union Tel Co, 336 Mich

at 90. However, when criminal acts independently rise to the level of

nuisances, “the jurisdiction of a court of equity arises,” United-Detroit

Theaters, 280 Mich at 430 (quotation marks and citations omitted), and

the acts may be enjoined, Western Union Tel Co, 336 Mich at 90.

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Attorney General’s complaint. Specifically, PowerPick

contended that the Attorney General had failed to state

a claim on which relief could be granted. It further

asserted that the complaint should have been dismissed

under the doctrines of equal protection, laches, and

unclean hands. The Attorney General argues that the

circuit court erred by denying his motion for summary

disposition of these affirmative defenses pursuant to

MCR 2.116(C)(9). We agree with the Attorney General.

The circuit court’s ruling on a motion for summary

disposition is reviewed de novo. Dressel, 468 Mich at

561. “Summary disposition under MCR 2.116(C)(9) is

proper if a defendant fails to plead a valid defense to a

claim.” Dimondale v Grable, 240 Mich App 553, 564;

618 NW2d 23 (2000). The motion should be granted

“[i]f the defenses are ‘ “so clearly untenable as a matter

of law that no factual development could possibly deny

plaintiff’s right to recovery[.]” ’ ” Id. (citations omit-

ted).

We reject PowerPick’s assertion that the Attorney

General failed to state a claim on which relief could be

granted. As noted previously, “[t]he attorney general,

acting on behalf of the people, is a proper party to bring

an action to abate a public nuisance or restrain unlaw-

ful acts which constitute a public nuisance.” Peterson,

381 Mich at 465-466; see also People ex rel Oakland Co

Prosecuting Attorney v Kevorkian, 210 Mich App 601,

607; 534 NW2d 172 (1995). A review of the pleadings

reveals that the Attorney General properly pleaded and

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supported his allegations of nuisance and unlawful

gambling. PowerPick’s claim in this regard must fail.

PowerPick also argued that the Attorney General’s

complaint should have been dismissed on the basis of

the constitutional guarantee of equal protection. In

particular, PowerPick asserted that it has been treated

differently than similarly situated entities, which were

allowed to continue operating in Michigan and had not

been sued by the Attorney General. We disagree. Pow-

erPick has failed to show that any other similarly

situated entities are operating in Michigan. As ex-

plained earlier, whereas a typical office lottery club uses

all the money contributed by its members to purchase

commonly held lottery tickets, PowerPick admits that it

uses only 51 percent of the money that it collects from

its customers to buy lottery tickets. PowerPick has not

demonstrated the existence of any other Michigan en-

tity that charges its customers an amount substantially

in excess of the face value of the lottery tickets pur-

chased in this manner. Accordingly, PowerPick has

failed to show that it has been treated differently than

any other similarly situated entity. People v Mouradian,

110 Mich App 815, 822; 314 NW2d 494 (1981).

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

ment be given those that are not similarly situated.’ ”

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

761 NW2d 747 (2008), quoting Alspaugh v Comm on

Law Enforcement Standards, 246 Mich App 547, 555;

634 NW2d 161 (2001).

We similarly reject PowerPick’s assertion that the

Attorney General’s complaint should have been dis-

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missed on the basis of laches. Laches is an affirmative

defense based primarily on circumstances that render

it inequitable to grant relief to a dilatory plaintiff.

Yankee Springs Twp v Fox, 264 Mich App 604, 611;

692 NW2d 728 (2004). The doctrine of laches is

triggered by the plaintiff’s failure to do something

that should have been done under the circumstances

or failure to claim or enforce a right at the proper

time. Schmude Oil Co v Omar Operating Co, 184 Mich

App 574, 583; 458 NW2d 659 (1990). “The doctrine of

laches is founded upon long inaction to assert a right,

attended by such intermediate change of conditions

as renders it inequitable to enforce the right.” An-

geloff v Smith, 254 Mich 99, 101; 235 NW 823 (1931).

But “[i]t has long been held that the mere lapse of

time will not, in itself, constitute laches.” Dep’t of

Treasury v Campbell, 107 Mich App 561, 570; 309

NW2d 668 (1981). “The defense, to be raised properly,

must be accompanied by a finding that the delay

caused some prejudice to the party asserting laches

and that it would be inequitable to ignore the preju-

dice so created.” Id. The defendant bears the burden

of proving this resultant prejudice. Yankee Springs

Twp, 264 Mich App at 612.

As the Attorney General correctly points out, the

early rule was that the government was “ ‘exempt from

the consequences of its laches....’” Detroit v 19675

Hasse, 258 Mich App 438, 445; 671 NW2d 150 (2003),

quoting Guaranty Trust Co v United States, 304 US 126,

132; 58 S Ct 785; 82 L Ed 1224 (1938); see also

Chippewa Co Bd of Supervisors v Bennett, 185 Mich

544, 564-565; 152 NW 229 (1915). However, this ancient

rule has apparently been abrogated in Michigan, at

least in part. See Royal Oak Twp v School Dist No 7,

322 Mich 397, 402-403; 33 NW2d 908 (1948). At least

one panel of this Court has cited the Royal Oak Twp

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decision for the proposition that “laches should

...be...available to an individual responding to a

government initiated action.” Dep’t of Treasury, 107

Mich App at 570.

Nevertheless, even if laches may be asserted

against a governmental entity, we conclude that the

equitable defense of laches was unavailable to Pow-

erPick because PowerPick acted with unclean hands.

Laches is an equitable doctrine. Baerlin v Gulf Refin-

ing Co, 356 Mich 532, 535; 96 NW2d 806 (1959);

Eberhard v Harper-Grace Hospitals, 179 Mich App 24,

35; 445 NW2d 469 (1989). It is well settled that one

who seeks equitable relief must do so with clean

hands. McCluskey v Winisky, 373 Mich 315, 321; 129

NW2d 400 (1964); Berar Enterprises, Inc v Harmon,

101 Mich App 216, 231; 300 NW2d 519 (1980). A

party with unclean hands may not assert the equi-

table defense of laches. Attorney General v Thomas

Solvent Co, 146 Mich App 55, 66; 380 NW2d 53 (1985).

Our Supreme Court has observed that a party who

has “acted in violation of the law” is not “before a

court of equity with clean hands,” and is therefore

“not in position to ask for any remedy in a court of

equity.” Farrar v Lonsby Lumber & Coal Co, 149 Mich

118, 121; 112 NW 726 (1907). Indeed, as stated in

Society of Good Neighbors v Mayor of Detroit, 324 Mich

22, 28; 36 NW2d 308 (1949), a court of equity “will

not lend its aid...to assist law violators.” Power-

Pick’s various gambling schemes violate the terms of

MCL 432.27(1), MCL 750.301, MCL 750.304, MCL

750.306, and MCL 750.372, and PowerPick has thus

acted with unclean hands. Farrar, 149 Mich at 121.

As a consequence, it may not assert the equitable

defense of laches. Thomas Solvent, 146 Mich App at

66.

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For the same reason, PowerPick was not entitled to

assert the equitable defense of unclean hands. A defen-

dant with unclean hands may not defend on the ground

that the plaintiff has unclean hands as well. To permit a

defendant with unclean hands to defend on such a ground

would contravene the ancient rule that “[h]e who hath

committed iniquity shall not have equity ....”Society of

Good Neighbors, 324 Mich at 28; see also McCredie v

Buxton, 31 Mich 383, 388 (1875).

PowerPick’s affirmative defenses fail as a matter of

law. The circuit court should have granted the Attorney

General’s motion for summary disposition of the affir-

mative defenses under MCR 2.116(C)(9). Dimondale,

240 Mich App at 564.

In ruling on the motion for summary disposition, the

circuit court did not address the Attorney General’s claim

that PowerPick’s operations violated the MCPA. In gen-

eral, we will not address an issue on appeal that was not

considered and decided below. Polkton Charter Twp v

Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005);

People v Hall, 158 Mich App 194, 199; 404 NW2d 219

(1987). Lest there be any confusion on the matter, we wish

to make clear that PowerPick’s operations constituted an

enjoinable nuisance for the reasons stated above, irrespec-

tive of whether PowerPick’s business practices also vio-

lated the MCPA. However, because the Attorney General

sought civil fines, costs, and other specific relief under the

MCPA, see MCL 445.905(1); MCL 445.905(4), we direct

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the circuit court to consider and address the Attorney

General’s MCPA claim on remand.

We have concluded that PowerPick’s operations and

office constitute an enjoinable nuisance and that Pow-

erPick failed to plead and assert any valid affirmative

defenses. Therefore, the circuit court erred by denying

the Attorney General’s motion for summary disposition

with respect to his nuisance claim. There remained no

genuine issue of material fact that would have pre-

cluded the grant of summary disposition on this issue,

and the Attorney General was entitled to judgment as a

matter of law. On remand, the circuit court shall enter

judgment in favor of the Attorney General with respect

to his nuisance claim. This shall include the entry of

any order that may be necessary to abate the nuisance

and to enjoin PowerPick’s continuing operations.

In contrast, the circuit court did not consider or

address the Attorney General’s MCPA claim. The cir-

cuit court shall consider this claim on remand.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

No costs under MCR 7.219, a public question having

been involved.

ARKEY

, J., concurred.

OEKSTRA

,J.(concurring in part and dissenting in

part). I agree and join with the holdings of the majority in

part II(C)(2) that PowerPick violates MCL 432.27(1) by

reselling lottery tickets at a price greater than that fixed

by the Michigan Lottery commissioner and part II(C)(3)

that PowerPick violates MCL 750.372 because its random

drawings for Michigan scratch-off lottery tickets consti-

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tute an illegal lottery and that its MegaPools constitute an

illegal gift enterprise. I also agree and join with the

holding of the majority in part III that PowerPick’s

affirmative defenses fail as a matter of law. In addition, I

agree that a remand is appropriate for consideration of the

Attorney General’s claims under the Michigan Consumer

Protection Act, MCL 445.901 et seq.

However, I respectfully disagree with the majority’s

conclusion in part II(C)(1) that PowerPick’s business

practice of randomly assigning its customers to pools

constitutes a second bet because the customer is “buy-

[ing] the chance of being assigned to one or more

winning pools,” ante at 30 (emphasis in original), and

this chance is one of the reasons why its customers pay

an amount that is 51 percent greater than the face

value of the tickets purchased. On the basis of its

interpretation of PowerPick’s practice of assigning its

customers to pools, the majority holds that PowerPick

receives bets contrary to MCL 750.301, registers bets

contrary to MCL 750.304, and possesses memoranda of

bets contrary to MCL 750.306. In contrast, although not

disputing that it charges its customers 51 percent more

than what it spends to purchase lottery tickets, Power-

Pick maintains that it is merely providing a service to

its customers and that the amount greater than that

used to purchase tickets represents its costs and profits.

In my opinion, whether the amount charged in addition

to the cost of the purchased lottery tickets is a reason-

able amount to pay for PowerPick’s business expenses

and profits, or in part is a second bet that buys the

customer a chance to be assigned to a winning pool, is a

disputed question of fact that cannot be resolved on a

motion for summary disposition. Consequently, on this

specific issue, I would affirm the trial court’s holding

that factual issues remain.

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,J.

I also respectfully disagree with the holdings of the

majority in parts II(C)(4) and (5) that “PowerPick’s

business operations, taken as a whole, constitute a

public nuisance,” ante at 45, and that “PowerPick’s

office in Comstock Park and ‘the furniture, fixtures,

and contents’ of that office constitute a nuisance as a

matter of law,” ante at 45. Because I believe that factual

questions exist concerning whether PowerPick’s busi-

ness practice of assigning its customers into pools

violates the provisions of the Michigan Penal Code at

issue, any determination whether PowerPick’s business

operations and its office constitute a nuisance for such

violations is premature. Moreover, whether Power-

Pick’s violation of MCL 432.27(1) constitutes a public

nuisance and, if it does, whether the violation is subject

to the sanctions provided for in MCL 600.3801 are

questions of first impression. In Attorney General, ex rel

Optometry Bd of Examiners v Peterson, 381 Mich 445,

465; 164 NW2d 43 (1969), the Supreme Court noted

that, “[a]t common law, acts in violation of law consti-

tute a public nuisance” and that the Attorney General

may sue to enjoin such nuisances. Therefore, although

no court has addressed the issue, it is arguable that

PowerPick’s violation of MCL 432.27(1) renders its

business a public nuisance. However, the Peterson Court

qualified its holding by noting that “[h]arm to the

public is presumed to flow from the violation of a valid

statute enacted to preserve public health, safety and

welfare.” Id. at 465. Numerous cases hold that the crimi-

nal gambling statutes, such as MCL 750.301, MCL

750.304, and 750.306, were enacted to preserve public

health, safety, and welfare. See, e.g., Parkes v Recorder’s

Court Judge, 236 Mich 460, 465-466; 210 NW 492 (1926);

Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App

318, 326; 256 NW2d 776 (1977). But whether MCL

432.27(1) was enacted to preserve public health, safety,

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and welfare is not a settled question. Because the

Attorney General only argued below that a violation of

MCL 432.27(1) provided an additional reason for con-

cluding that PowerPick’s operation was a public nui-

sance, the issue whether MCL 432.27(1) was enacted to

preserve public health, safety, and welfare was not

raised in the trial court, nor was it briefed on appeal.

Under these circumstances, I would remand to the trial

court for initial consideration of whether a violation of

MCL 432.27(1) constitutes a public nuisance and, if so,

whether, and to what extent, the violation is subject to

the sanctions of MCL 600.3801.

Finally, I agree with the holding of the majority in

part II(C)(5) that PowerPick’s drawings for scratch-off

lottery tickets are “gambling” and, therefore, Power-

Pick can be sanctioned under MCL 600.3801. However,

unlike the majority, I would also remand to the trial

court for a determination of what, if any, assets are

subject to the sanction provided by MCL 600.3801 for

this particular violation.

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,J.

NUCULOVIC v HILL

Docket No. 280216. Submitted January 7, 2009, at Detroit. Decided

January 5, 2010, at 9:10 a.m.

Paska Nuculovic brought an action in the Macomb Circuit Court,

Mary A. Chrzanowski, J., against Johnny D. Hill and SMART Bus,

Inc., seeking damages for injuries sustained in a motor vehicle

accident that occurred when a bus owned by SMART Bus and

driven by SMART Bus employee Hill turned in front of the vehicle

driven by plaintiff. Defendants moved for summary disposition,

alleging that plaintiff failed to provide them notice of her claim

within 60 days of the accident, as required by MCL 124.419. The

trial court granted defendants’ motion. Plaintiff appealed.

The Court of Appeals held:

1. No language in MCL 124.419 suggests that it applies only to

claims involving bus passengers, or does not apply to claims

involving injuries to nonpassengers, or that it only applies to

common-carrier liability. The statute applies to all claims that may

arise in connection with the transportation authority.

2. MCL 124.419 does not negate the liability established by

MCL 257.401, which provides that the owner of a vehicle may be

liable for the negligent operation of that vehicle. MCL 124.419 and

MCL 257.401 are not mutually exclusive. The fact that SMART

Bus may be subject to liability as the owner of a vehicle does not

preclude the applicability of MCL 124.419, which prescribes a

notice requirement for presenting a claim against a transportation

authority.

3. The broad language of MCL 124.419 also encompasses

plaintiff’s claim against Hill because the claim arises from Hill’s

operation of the bus as an employee of SMART Bus.

4. Although SMART Bus had in its possession the police report

of the accident and reports prepared by Hill and his supervisor,

plaintiff did not “serve” (formally deliver to) SMART Bus notice of

plaintiff’s claim for injury as service is defined in the court rules.

The trial court properly determined that the statutory notice

requirement was not satisfied.

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5. Even if the police reports in the possession of SMART Bus

constituted notice of some kind of an occurrence, they did not

constitute notice of a claim to defendants as required by MCL

124.419.

6. The trial court did not abuse its discretion by denying

plaintiff’s motion for reconsideration.

Affirmed.

ORRELLO

, J., concurring in part and dissenting in part, stated

his agreement with the majority on all issues except its analysis

and conclusions regarding the notice and service of process re-

quirements of MCL 124.419. A “claim” is defined by Black’s Law

Dictionary (8th ed) as the aggregate of operative facts giving rise to

a right enforceable by a court. This definition refutes any sugges-

tion that, in order to provide notice sufficient under MCL 124.419,

plaintiff was required to specifically inform defendants that she

intended to take legal action. Plaintiff’s duty to provide written

notice of the claim encompassed the duty to notify defendants of

the operative facts giving rise to a right enforceable by a court. The

police report and the incident reports provided legally sufficient

notice. Statutory notice provisions like MCL 124.419 should not be

so strictly construed as to render it impossible for an average

citizen to comply. The majority errs in implying that in order to

effectuate legally sufficient service under MCL 124.419, an injured

party must fulfill the requirements of the court rules outlined in

the majority’s opinion, or must serve the entity by registered mail.

The dictionary definitions of “notice” and “serve” are consistent

with the notion of bringing knowledge to the attention of another

and do not require delivery of a summons and complaint or service

by registered mail. The order granting summary disposition

should be reversed and the case should be remanded for further

proceedings.

1. C

ONFLICT OF

AWS —

ETROPOLITAN

RANSPORTATION

UTHORITIES

CT —

OTOR

EHICLES —

WNER’S

IABILITY

The provisions of MCL 124.419 and MCL 257.401 are not mutually

exclusive; MCL 257.401 provides that the owner of a vehicle may

be liable for the negligent operation of the vehicle; MCL 124.419

only prescribes a notice requirement for presenting a claim against

a transportation authority and does not negate the liability estab-

lished by MCL 257.401; the fact that a transportation authority

may be subject to liability under MCL 257.401 as the owner of a

vehicle does not preclude the applicability of MCL 124.419 to all

claims that may arise in connection with the transportation

authority.

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2. A

CTIONS —

OTICE —

ETROPOLITAN

RANSPORTATION

UTHORITIES

The Metropolitan Transportation Authorities Act requires notice of

any claim against a transportation authority based upon injury to

persons or property to be served upon the authority no later than

60 days from the occurrence through which such injury is sus-

tained; under the court rules, where service is not done by mailing,

service means delivery at a particular time and place; the term

“service” is defined as the formal delivery of a writ, summons, or

other legal process (MCR 2.102, 2.103, 2.104, 2.105; MCL 124.419).

Sommers Schwartz, P.C. (by Samuel A. Meklir), for

plaintiff.

Zausmer, Kaufman, August, Caldwell & Tayler, P.C.

(by Carson J. Tucker, Mark J. Zausmer, and Scott R.

Reizen), for defendants.

Before: F

ORT

OOD

,P.J., and W

ILDER

and B

ORRELLO

JJ.

ILDER

, J. Plaintiff appeals as of right the trial

court’s grant of summary disposition in favor of defen-

dants. We affirm.

In September 2005, plaintiff was driving a vehicle

north on Harper Avenue, at an intersection with a

highway entrance ramp, when defendant Johnny D.

Hill, driving a bus owned by defendant SMART Bus,

Inc. (SMART), turned left in front of her vehicle,

causing a collision. Plaintiff sued defendants in 2006,

more than 60 days after the accident, alleging injuries

resulting from the negligence of defendants.

Defendants moved for summary disposition under

MCR 2.116(C)(7), (8), and (10), on the ground that plain-

tiff failed to provide notice of her claim within 60 days of

the accident, as required by MCL 124.419, a part of the

Metropolitan Transportation Authorities Act, MCL

124.401 et seq. The trial court granted defendants’ mo-

tion, and denied plaintiff’s motion for reconsideration.

This appeal ensued.

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We review summary dispositions de novo. Willett v

Waterford Charter Twp, 271 Mich App 38, 45; 718

NW2d 386 (2006). Questions of law, such as construc-

tion of a statute, are also reviewed de novo. Morden v

Grand Traverse Co, 275 Mich App 325, 340; 738 NW2d

278 (2007).

Subrule (C)(7) permits summary disposition where

the claim is barred by an applicable statute of limita-

tions. In reviewing a motion under subrule (C)(7), a

court accepts as true the plaintiff’s well-pleaded allega-

tions of fact, construing them in the plaintiff’s favor.

Hanley v Mazda Motor Corp, 239 Mich App 596, 600;

609 NW2d 203 (2000). The Court must consider affida-

vits, pleadings, depositions, admissions, and any other

documentary evidence submitted by the parties, to

determine whether a genuine issue of material fact

exists. Id. These materials are considered only to the

extent that they are admissible in evidence. In re

Miltenberger Estate, 275 Mich App 47, 51; 737 NW2d

513 (2007).

A motion for summary disposition under subrule

(C)(8) tests the legal sufficiency of the pleadings alone.

MCR 2.116(G)(5); Johnson-McIntosh v Detroit, 266

Mich App 318, 322; 701 NW2d 179 (2005). Where the

parties rely on documentary evidence, appellate courts

proceed under the standards of review applicable to a

motion made under MCR 2.116(C)(10), Healing Place at

North Oakland Med Ctr v Allstate Ins Co, 277 Mich App

51, 55; 744 NW2d 174 (2007), or (C)(7).

A motion made under MCR 2.116(C)(10) tests the

factual support for a claim, Campbell v Kovich, 273

Mich App 227, 229; 731 NW2d 112 (2006), and should

be granted when there is no genuine issue of material

fact and the moving party is entitled to judgment as a

matter of law, Healing Place, 277 Mich App at 56. When

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the burden of proof at trial would rest on the nonmov-

ing party, the nonmovant may not rest upon mere

allegations or denials in the pleadings, but must, by

documentary evidence, set forth specific facts showing

that there is a genuine issue for trial. Id. But again,

such evidence is only considered to the extent that it is

admissible. MCR 2.116(G)(6); Campbell, 273 Mich App

at 230. A genuine issue of material fact exists when the

record, drawing all reasonable inferences in favor of the

nonmoving party, leaves open an issue upon which

reasonable minds could differ. Healing Place, 277 Mich

App at 56.

Here, the trial court considered defendants’ motion

under MCR 2.116(C)(7), (8), and (10), but did not

indicate under which subrule it granted it. Because the

trial court considered evidence beyond the pleadings,

we review the motion as though it were granted under

MCR 2.116(C)(7) or (10).

MCL 124.419 provides:

All claims that may arise in connection with the trans-

portation authority shall be presented as ordinary claims

against a common carrier of passengers for hire: Provided,

That written notice of any claim based upon injury to

persons or property shall be served upon the authority no

later than 60 days from the occurrence through which such

injury is sustained and the disposition thereof shall rest in

the discretion of the authority and all claims that may be

allowed and final judgment obtained shall be liquidated

from funds of the authority: Provided, further, That only

the courts situated in the counties in which the authority

principally carries on its function are the proper counties in

which to commence and try action against the authority.

[Emphasis added.]

“Shall” is mandatory. Roberts v Farmers Ins Exch, 275

Mich App 58, 68; 737 NW2d 332 (2007).

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The Metropolitan Transportation Authorities Act

does not define “claim.” However, in CAM Constr v

Lake Edgewood Condo Ass’n, 465 Mich 549, 554; 640

NW2d 256 (2002), relying on Black’s Law Dictionary

(7th ed), the term “claim” was defined as the aggregate

of operative facts giving rise to a right enforceable by a

court. The statute at issue in this case requires that a

claim be “based upon injury to persons or prop-

erty....” MCL 124.419. Here, it is undisputed that

plaintiff did not provide notice of a court-enforceable

right based on a personal injury within 60 days of the

date of the accident.

Plaintiff contends that defendants should not have

been able to rely on MCL 124.419 in support of their

motion for summary disposition, because they did not

timely raise reliance on MCL 124.419 as an affirma-

tive defense. Because plaintiff did not challenge be-

low defendants’ right to assert this statute as an

affirmative defense, on the ground that it was not

timely raised, the issue is not preserved. We therefore

reject plaintiff’s unpreserved claim. Coates v Bastian

Bros, Inc, 276 Mich App 498, 510; 741 NW2d 539

(2007), quoting Booth Newspapers, Inc v Univ of

Michigan Bd of Regents, 444 Mich 211, 234; 507

NW2d 422 (1993) (stating that “ ‘[i]ssues raised for

the first time on appeal are not ordinarily subject to

review’ ” in a civil case). This Court may overlook

preservation requirements if the failure to consider

the issue would result in manifest injustice, if consid-

eration is necessary for a proper determination of the

case, or if the issue involves a question of law and the

facts necessary for its resolution have been pre-

sented. Johnson Family Ltd Partnership v White Pine

Wireless, LLC, 281 Mich App 364, 377; 761 NW2d 353

(2008). We do not find any of these exceptions to be

applicable.

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We next address plaintiff’s various arguments that

MCL 124.419 does not apply here. We hold that it does

apply.

When construing a statute, we use well-established

principles, and begin by consulting the specific statu-

tory language. Provider Creditors Comm v United

American Health Care Corp, 275 Mich App 90, 95; 738

NW2d 770 (2007). This Court gives effect to the Legis-

lature’s intent, as expressed in the statute’s terms,

giving the words of the statute their plain and ordinary

meanings. McManamon v Redford Charter Twp, 273

Mich App 131, 135; 730 NW2d 757 (2006). “When the

language poses no ambiguity, this Court need not look

beyond the statute or construe the statute, but need

only enforce the statute as written.” Id. at 136. “This

Court does not interpret a statute in a way that renders

any statutory language surplusage or nugatory.” Id.

Plaintiff argues that MCL 124.419 is intended to

prevent claims by phantom bus passengers, and, there-

fore, does not apply to claims by persons involved in a

motor vehicle accident with a bus, while a passenger or

driver of another vehicle. Plaintiff also argues that MCL

124.419 should apply only to claims based on common-

carrier liability. We disagree.

Plaintiff’s arguments find no support in the language

of the statute. The statute applies, unambiguously, to

“[a]ll claims that may arise in connection with the

transportation authority ....”MCL124.419 (emphasis

added). There is no language suggesting that it applies

only to claims involving bus passengers, or does not

apply to claims involving injuries to nonpassengers, or

that it only applies to common-carrier liability. To

accept plaintiff’s interpretation would render nugatory

the “[a]ll claims” language, which we lack authority to

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do. McManamon, 273 Mich App at 136. We apply the

statute as written,

and reject this claim of error.

We also reject plaintiff’s argument that MCL 124.419

does not apply because the action is premised on

SMART’s liability as the owner of the vehicle, under the

owner liability statute, MCL 257.401, and not on its

status as a common carrier. Contrary to what plaintiff

suggests, MCL 257.401 and MCL 124.419 are not mu-

tually exclusive. MCL 257.401 provides that the owner

of a vehicle may be liable for the negligent operation of

that vehicle. MCL 124.419 does nothing to negate the

liability established by MCL 257.401; it only prescribes

a notice requirement for presenting a claim against a

transportation authority. And as previously indicated,

MCL 124.419 applies to “[a]ll claims that may arise in

connection with the transportation authority....”

Thus, the fact that SMART may be subject to liability as

the owner of a vehicle does not preclude the applicabil-

ity of MCL 124.419.

Plaintiff also argues that to the extent MCL 124.419

applies, it applies only to claims against common carri-

ers, and, therefore, would not apply to any claim against

Hill, individually. In light of the statutory language

indicating that the statute applies to “[a]ll claims that

may arise in connection with the transportation author-

ity,” we must reject this claim as well. The broad

language of the statute indicates that it encompasses

plaintiff’s claim against Hill, because the claim arises

from Hill’s operation of the bus as an employee of

SMART.

Further, in Trent v Suburban Mobility Auth for Regional Transpor-

tation, 252 Mich App 247, 251-252; 651 NW2d 171 (2002), this Court held

that the no-fault act, MCL 500.3101 et seq., supersedes the prescribed

time period in MCL 124.419 with respect to first-party no-fault personal

protection insurance benefits, but not for third-party claims of personal

injury. The case at bar is a third-party action.

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Plaintiff also argues that MCL 124.419 does not

apply because SMART has excess insurance that pro-

vides coverage for claims over $1 million. Plaintiff

observes that MCL 124.419 provides that claims “shall

be liquidated from funds of the authority” and that the

disposition of claims is within the discretion of the

authority. Plaintiff argues that the availability of insur-

ance necessarily limits SMART’s authority regarding

the disposition of a claim. We find it unnecessary to

consider the merits of this argument, because plaintiff

failed to show that there was an issue of fact concerning

whether her claim might exceed $1 million, thereby

triggering the availability of excess insurance. Further,

plaintiff failed to show any potential availability of

insurance for defendant Hill that would avoid the

applicability of MCL 124.419. For these reasons, we

reject plaintiff’s arguments that MCL 124.419 is not

applicable to this action.

Plaintiff also argues that, even if the notice require-

ment of MCL 124.419 is applicable, proper notice was

given because SMART received a copy of the police

report for the incident and because both Hill and his

supervisor prepared reports regarding the accident. We

disagree. MCL 124.419 requires that “written notice of

any claim based upon injury” be served upon the

authority within 60 days of the date of the accident.

The term “service” is not defined in MCL 124.419,

but the concept of service of process is well clarified in

our court rules. Service of process is addressed in MCR

2.102, 2.103, and 2.104. Where service is to be made on

a public corporation, MCR 2.105(G) provides that

“[s]ervice of process... may be made by serving a

summons and a copy of the complaint on” various

officials, officers, or members. When process is served

on an individual, it may be done by “delivering a

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summons and a copy of the complaint....” MCR

2.105(A)(1) (emphasis added). The requirements for

proof of service include a description of the facts of

service, including the time, place, and manner of ser-

vice. MCR 2.104(A)(3). Thus, under our court rules,

where service is not done by mail, service means deliv-

ery at a particular time and place. MCR 2.105(A)(1);

MCR 2.104(A)(3). And such service is usually done by a

process server. MCR 2.103. Plaintiff has no evidence of

any delivery of her claim, much less formal delivery

such as by a process server. And plaintiff has no “proof

of service” as that term is used in the law.

Under MCR 2.105(H)(1), “[s]ervice of process on a

defendant may be made by serving a summons and a

copy of the complaint on an agent authorized by written

appointment or by law to receive service of process.”

Under subrule (H)(2), “[w]henever, pursuant to statute

or court rule, service of process is to be made on a

nongovernmental defendant by service on a public

officer, service on the public officer may be made by

registered mail addressed to his or her office.” MCR

2.105(H)(2). Here, there is no evidence that SMART

received any notice by registered mail.

Furthermore, while the process in which service is

made is well-specified in the court rules, the word

“service” is not defined in either our court rules or in

the statute at issue here. Therefore, we may consult a

legal dictionary to define an undefined term that has a

specific legal meaning. Snyder v Advantage Health

Physicians, 281 Mich App 493, 502; 760 NW2d 834, 839

(2008). In Black’s Law Dictionary, the word “service” is

defined as “[t]he formal delivery of a writ, summons, or

other legal process....” Black’s Law Dictionary (8th

ed), p 1399 (emphasis added).

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As the trial court observed, while SMART had in its

possession the police report and the reports prepared by

Hill and his supervisor, plaintiff did not “serve” (for-

mally deliver to) SMART notice of plaintiff’s claim for

injury as service is defined in our court rules. Therefore,

the trial court properly determined that the statutory

notice requirement was not satisfied, and properly

granted defendants’ motion for summary disposition on

this basis.

We disagree with the dissent’s conclusion that our

analysis in this case should be affected by the Supreme

Court’s order in Chambers v Wayne Co Airport Auth,

483 Mich 1081 (2009), which denied leave to appeal this

Court’s opinion in Chambers v Wayne Co Airport Auth,

unpublished opinion per curiam of the Court of Ap-

peals, issued June 5, 2008 (Docket No. 277900). The

Supreme Court had originally reversed the decision of

the Court of Appeals, 482 Mich 1136 (2008), but

granted reconsideration, vacated its earlier order, and

denied leave to appeal. 483 Mich 1081 (2009).

First, this Court’s opinion in Chambers was unpub-

lished, and as such, it has no precedential force. MCR

7.215(C)(1); Marilyn Froling Revocable Living Trust v

Bloomfield Hills Country Club, 283 Mich App 264,

282-283; 769 NW2d 234 (2009). The Supreme Court’s

denial of leave to appeal, effectively affirming the result

reached in that case, also has no precedential value.

MCR 7.302(H)(3); Tebo v Havlik, 418 Mich 350, 363 n 2;

343 NW2d 181 (1984).

Second and more substantively, Chambers is distin-

guishable from the present case. In Chambers, the

plaintiff alleged that he fell in a puddle of water at the

LC Smith Terminal of the Wayne County Airport. An

officer employed by defendant Wayne County Airport

Authority was flagged down by passersby, and this

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officer wrote up an incident report. Defendant Wayne

County Airport Authority moved for summary disposi-

tion, arguing, in part, that the plaintiff failed to provide

notice of the occurrence within 120 days as required by

MCL 691.1406. The trial court denied the motion, and

this Court affirmed.

MCL 691.1406 provides, in pertinent part:

As a condition to any recovery for injuries sustained by

reason of any dangerous or defective public building, the

injured person, within 120 days from the time the injury

occurred, shall serve a notice on the responsible govern-

mental agency of the occurrence of the injury and the defect.

The notice shall specify the exact location and nature of the

defect, the injury sustained and the names of the witnesses

known at the time by the claimant.

The notice may be served upon any individual, either

personally, or by certified mail, return receipt requested,

who may lawfully be served with civil process directed

against the responsible governmental agency, anything to

the contrary in the charter of any municipal corporation

notwithstanding. [Emphasis added.]

This Court concluded that the incident report pre-

pared by the airport authority’s employee was sufficient

notice of the occurrence to satisfy the notice require-

ments of MCL 691.1406.

In the instant case, rather than requiring notice of an

occurrence, MCL 124.419 specifically requires that no-

tice of a claim be served on the SMART authority

within 60 days of the accident. Therefore, even if the

police reports in defendant SMART’s possession consti-

tuted notice of some kind of an occurrence, they did not

constitute notice of a claim to defendants. Plaintiff has

failed to show that, from the police reports, the defen-

dant authority had any way of knowing that plaintiff

intended to file a claim for injury to her person or her

property because of the 2005 collision, much less what

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the claim would actually be. Thus, factually and as a

matter of law, plaintiff has failed to satisfy the notice

requirements of MCL 124.419.

Plaintiff also argues that the trial court erred by

denying her motion for reconsideration. Plaintiff ar-

gued below that reconsideration was warranted, for

reasons that we have previously addressed and rejected

in this opinion. Because plaintiff failed to show that the

trial court’s original decision granting summary dispo-

sition was erroneous, the trial court did not abuse its

discretion by denying plaintiff’s motion for reconsidera-

tion. In re Beglinger Trust, 221 Mich App 273, 279; 561

NW2d 130 (1997).

In light of our ruling that plaintiff failed to provide

notice as required by MCL 124.419, defendant’s alter-

native argument regarding governmental immunity is

moot. Mettler Walloon, LLC v Melrose Twp, 281 Mich

App 184, 221; 761 NW2d 293 (2008).

Affirmed. Defendant, being the prevailing party, may

tax costs pursuant to MCL 7.219.

ORT

OOD

,P.J., concurred.

ORRELLO

,J.(concurring in part and dissenting in

part). I concur with the majority’s analysis of plaintiff’s

claims of error on all issues except its analysis and

conclusions regarding the notice and service of process

requirements mandated by MCL 124.419. I respectfully

dissent from the majority’s conclusions that the police

report and incident reports failed to satisfy the notice

requirement of MCL 124.419 and that defendants were

not properly “served” pursuant to the plain language of

the statute. On the basis of my reading of the notice

requirement stated in MCL 124.419, the police report

and two incident reports, which defendants possessed,

constituted legally sufficient notice under MCL 124.419

and, accordingly, I would reverse the granting of sum-

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mary disposition and remand the matter to the trial

court for further proceedings.

MCL 124.419 requires that a common carrier of

passengers be served “written notice of any claim[.]”

My disagreement with the majority’s conclusion regard-

ing whether notice was proper under MCL 124.419 is

based on this Court’s holding in Chambers v Wayne Co

Airport Auth, unpublished opinion per curiam of the

Court of Appeals, issued June 5, 2008 (Docket No.

277900), lv den 483 Mich 1081 (2009). Although unpub-

lished opinions of this Court are not precedentially

binding under the rule of stare decisis, MCR

7.215(C)(1), such opinions can be persuasive. I am

persuaded by this Court’s decision in Chambers because

it is consistent with longtime legal precedent in this

state, which recognizes that notice, when required of an

average citizen for the benefit of a governmental entity,

need only be understandable and sufficient to bring to

the defendant’s attention the important facts, Brown v

Owosso, 126 Mich 91, 94-95; 85 NW 256 (1901), and

that notice provided by an average citizen must be

construed liberally in favor of the citizen. Meredith v

Melvindale, 381 Mich 572, 579; 165 NW2d 7 (1969).

In Chambers, a panel of this Court held that an

incident report taken by employee of defendant Wayne

County Airport Authority satisfied the statutory notice

requirement in the public building exception to govern-

mental immunity, MCL 691.1406. Chambers, unpub op

at 3. In so ruling, this Court stated:

[I]t has nevertheless long been the case in Michigan that

“notice,” particularly where demanded of an average citi-

zen for the benefit of a governmental entity, need only be

understandable and sufficient to bring to the defendant’s

attention the important facts. Brown v City of Owosso, 126

Mich 91, 94-95; 85 NW 256 (1901). The notice itself,

therefore, should be liberally construed in favor of “the

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inexpert layman with a valid claim” who “should not be

penalized for some technical defect.” Meredith v City of

Melvindale, 381 Mich 572, 579; 165 NW2d 7 (1969). What

constitutes “a notice” is not, in fact, defined in the govern-

mental tort liability act. MCL 24.205(4), MCL 462.107(3),

and MCL 565.802(i) define the term in various ways that

do not seem relevant except insofar as they are consistent

with the dictionary definitions, all of which pertain to

bringing knowledge to the attention of another.[Chambers,

unpub op at 2 (emphasis in original).]

Although Chambers involved notice under the public

building exception and this case involves notice under

MCL 124.419, I find the analysis set forth by our Court

in Chambers persuasive and would apply the same

reasoning to the notice requirement contained in MCL

124.419. The majority asserts that Chambers is distin-

guishable from the present case because of distinctions

in the notice required in MCL 691.1406 and MCL

124.419. I find that the statutes, while not identical, are

sufficiently similar to apply the reasoning in Chambers

to this case because both statutes concern an average

citizen’s providing notice. Moreover, the same concerns

underlying this Court’s rationale for liberally constru-

ing notice provided by an average citizen under the

public building exception also apply to MCL 124.419.

The notice provided by an inexpert layman with a valid

claim should be liberally construed whether the layman

is providing notice under the public building exception

or notice under MCL 124.419.

As stated above, MCL 124.419 requires, quite simply,

“written notice of any claim[.]” The majority suggests

that in order to satisfy the “written notice of any claim”

requirement of MCL 124.419, defendants must have

known that plaintiff intended to file a legal claim. A

“claim” is defined as “[t]he aggregate of operative facts

giving rise to a right enforceable by a court[.]” Black’s

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Law Dictionary (8th ed). Thus, the legal dictionary

definition of the word “claim” refutes any suggestion

that, in order to provide notice sufficient under MCL

124.419, plaintiff was required to explicitly inform

defendants that she intended to take legal action. To

the contrary, based on the definition of the word

“claim,” plaintiff’s duty to provide “written notice of

any claim” encompassed the duty to notify defendants

of the operative facts giving rise to a right enforceable

by a court. In this case, the police report and the

incident reports informed defendants of the date and

time of the injury, the nature of any injures, and myriad

surrounding facts, all of which combined to provide

legally sufficient notice of the aggregate of operative

facts giving rise to a right enforceable by a court. The

conclusion that a police report or an incident report

satisfies the notice requirement of MCL 124.419, as

long as they contain the operative facts giving rise to a

right enforceable by a court, is consistent with the

purpose of the notice provision in MCL 124.419, which,

pursuant to the plain language of the statute, is to

apprise a common carrier that a claim is being asserted

against it arising from injuries to a person or property.

Statutory notice provisions like the one in MCL 124.419

should not be so strictly construed as to render it

impossible for an average citizen to comply. See Brown,

supra at 94-95. Therefore, I would hold that the trial

court improperly concluded that plaintiff failed to sat-

isfy the notice requirement in MCL 124.419.

I additionally dissent from the majority’s implication

that in order to effectuate legally sufficient service under

MCL 124.419, an injured party must fulfill the require-

ments of the court rules outlined in the major-

ity’s opinion, or must serve the entity by registered mail.

Again, the plain language of MCL 124.419 imposes no

such requirements. The Legislature is presumed to

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have intended the meaning it plainly expressed. Po-

hutski v City of Allen Park, 465 Mich 675, 683; 641

NW2d 219 (2002). A court may not read something into

an unambiguous statute that is not within the manifest

intent of the Legislature as derived from the words of

the statute itself. Roberts v Mecosta Co Gen Hosp, 466

Mich 57, 63; 642 NW2d 663 (2002).

As the panel in Chambers recognized, when a term is

not defined in a statute, it is appropriate to refer to

dictionary definitions. The dictionary definitions of the

term “notice” all “pertain to bringing knowledge to the

attention of another.” Chambers, unpub op at 2 (empha-

sis in original). Black’s Law Dictionary (8th ed) defines

“serve” as “[t]o make legal delivery of (a notice or

process)” or “[t]o present (a person) with a notice or

process as required by law[.]” These definitions of

“serve” are consistent with the notion of “bringing

knowledge to the attention of another” and do not

require, as the majority suggests, delivery of a summons

and complaint or service by registered mail. Defendants

do not contend, and the record does not support a

finding, that defendants did not possess the police

report and the two incident reports. Therefore, defen-

dants’ receipt of the police report, coupled with the

incident reports, constituted legally sufficient service of

notice pursuant to MCL 124.419.

On the basis of my analysis, because defendants’

receipt of the police report or either incident report

satisfied the written notice requirement and service of

notice requirement set forth in MCL 124.419, I disagree

with the majority that defendants were not properly

“served” with legally sufficient notice of the incident

under the plain language of MCL 124.419. Accordingly,

I would reverse the grant of summary disposition in

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favor of defendants and remand the matter for further

proceedings consistent with this opinion.

On all other issues, I concur with the analysis and

conclusions stated in the majority’s opinion.

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PINION BY

ORRELLO

,J.

WARD v MICHIGAN STATE UNIVERSITY (ON REMAND)

Docket No. 281087. Submitted November 23, 2009, at Lansing. Decided

January 7, 2010, at 9:00 a.m.

Carla and Gary Ward brought an action in the Court of Claims

against Michigan State University, seeking damages for injuries

sustained by Carla when she was struck by a hockey puck while

attending a college hockey game at defendant’s ice arena. Plain-

tiffs never served defendant notice of the occurrence of the injury

or the alleged defect in the building that caused the injury, as

required by MCL 691.1406. However, plaintiffs’ attorney did send

letters to the ice arena addressed to “Sir/Madam,” but the letters

did not indicate the specific cause or nature of the injury, the exact

location and nature of any defect in the ice arena, or provide the

names of any witnesses to the incident known to plaintiffs as

required by MCL 691.1406. The Court of Claims, James R.

Giddings, J., granted summary disposition to defendant with

respect to the plaintiffs’ claims based on the proprietary function

exception to governmental immunity, MCL 691.1413, and denied

summary disposition in favor of defendant with regard to plain-

tiffs’ claims based on the public building exception to governmen-

tal immunity, MCL 691.1406. Defendant appealed with regard to

the claims under the public building exception and plaintiffs

cross-appealed with regard to the claims under the proprietary

function exception. The Court of Appeals, O

WENS

,P.J., and S

AWYER

and M

ARKEY

, JJ., affirmed the grant of summary disposition to

defendant with regard to the proprietary function exception claim

but reversed the denial of summary disposition to defendant with

regard to the public building exception claim in an unpublished

opinion per curiam, issued January 27, 2009 (Docket No. 281087).

The Supreme Court, in lieu of granting leave to appeal, vacated the

judgment of the Court of Appeals and remanded the case to the

Court of Appeals for reconsideration of defendant’s appeal in light

of the Supreme Court’s order on reconsideration in Chambers v

Wayne Co Airport Auth, 483 Mich 1081 (2009). In all other

respects, leave to appeal was denied by the Supreme Court. 485

Mich 917 (2009).

On remand, the Court of Appeals held:

76 287 M

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76 [Jan

1. The Court of Claims erred by failing to grant defendant’s

motion for summary disposition of the public building exception

claim because plaintiffs failed to serve defendant notice of the

occurrence of the incident as required by MCL 691.1406 as a

precondition to bringing suit under the public building exception

to governmental immunity. Plaintiffs did not substantially comply

with the statute. The statute does not require the governmental

agency to show prejudice before the statute may be enforced. The

Court of Claims’ denial of defendant’s motion for summary

disposition of this claim must be reversed.

2. Although a provision of MCL 691.1406 does require that as

a condition of liability for a defective building the governmental

agency have actual or constructive knowledge of the defect before

the incident, this provision does not diminish the separate require-

ment of the statute that the injured person serve a notice with the

required information in the specified way, on the appropriate

representative of the agency, and within 120 days as a condition to

any recovery for injuries sustained by reason of any dangerous or

defective public building.

3. Plaintiffs failed to show that defendant operated its ice

hockey program primarily to generate a profit. Intercollegiate

athletics is a governmental function of a state university or college

that entitles it to governmental immunity. The Court of Claims

properly granted summary disposition to defendant with regard to

the proprietary function claim. The grant of summary disposition

to defendant with regard to this claim must be affirmed.

Affirmed in part and reversed in part.

Church, Kritselis & Wybel, P.C. (by James T. Heos),

for plaintiffs.

Michael J. Kiley for defendant.

ON REMAND

Before: O

WENS

,P.J., and S

AWYER

and M

ARKEY

,JJ.

URIAM

. This case comes before the Court on

remand for reconsideration after our Supreme Court

vacated our previous opinion. See Ward v Michigan

State Univ, unpublished opinion per curiam of the

Court of Appeals, issued January 27, 2009 (Docket No.

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281087), vacated and remanded 485 Mich 917 (2009).

Defendant appeals by right the Court of Claims’ denial

of its motion for summary disposition under MCR

2.116(C)(7) and (8) with regard to plaintiffs’ claims

under the public building exception to governmental

immunity. Plaintiffs cross-appeal, challenging the

Court of Claims’ grant of summary disposition to de-

fendant as to plaintiffs’ claims under the proprietary

function exception to governmental immunity. On re-

consideration, we again affirm the Court of Claims’

grant of summary disposition to defendant regarding

plaintiffs’ claim in avoidance of governmental immu-

nity under the proprietary function exception. But we

reverse the trial court’s denial of summary disposition

to defendant regarding plaintiffs’ claim under the pub-

lic building exception.

In our prior opinion reversing the Court of Claims’

denial of summary disposition to defendant regarding

plaintiffs’ claim under the public building exception, we

relied in part on Chambers v Wayne Co Airport Auth,

482 Mich 1136 (2008) (Chambers II). That case reversed

this Court’s unpublished opinion per curiam, issued

June 5, 2008 (Docket No. 277900) (Chambers I), for the

reasons stated in Judge M

URRAY

’s dissent. We reasoned

in our prior opinion that because a peremptory order of

our Supreme Court is binding precedent in this Court if

it can be understood, Evans & Luptak, PLC v Lizza, 251

Mich App 187, 196; 650 NW2d 364 (2002), we were

bound by our Supreme Court’s adoption of the dissent

in this Court in Chambers I because it constituted

binding precedent. However, on reconsideration, our

Supreme Court subsequently vacated its order in

Chambers II and denied defendant’s application for

leave to appeal this Court’s decision in Chambers I.

Chambers v Wayne Co Airport Auth, 483 Mich 1081

(2009) (Chambers III). The net result of Chambers III

78 287 M

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76 [Jan

was to negate the precedential effect of Chambers II and

the dissenting opinion in Chambers I. Of course, the

majority opinion in Chambers I also lacks precedential

effect. MCR 7.215(C)(1).

Plaintiffs allege that on March 12, 2004, while at-

tending a college hockey game at defendant’s ice arena,

a hockey puck struck and injured the principal plaintiff,

Carla Ward. Plaintiffs contend that a defect, specifically

the lack of Plexiglass protecting one section of specta-

tors from the ice rink in defendant’s building, caused

the incident. One of defendant’s employees apparently

assisted plaintiff after she was injured and until an

ambulance arrived to transport plaintiff for medical

treatment. Critically, plaintiffs never served defendant

with a notice of claim or information required by MCL

691.1406. Rather, plaintiffs’ counsel on December 30,

2004, mailed a letter addressed to “Sir/Madam” at

“MSU Munn Ice Arena, East Lansing, MI, 48823.” In

this letter, counsel advised that he represented the

principal plaintiff “in the matter of personal injuries

she sustained as a result of an automobile accident” on

March 12, 2004. Plaintiffs’ counsel mailed a second and

similar letter on January 21, 2005. Both letters sug-

gested that the matter be referred to defendant’s insur-

ance carrier and that counsel be contacted directly if

defendant lacked insurance. The letters did not indicate

the specific cause or nature of the injury, indicate the

exact location and nature of any defect in the ice arena,

or provide the names of any witnesses to the incident

known to plaintiffs.

We review de novo both a trial court’s grant or denial

of a motion for summary disposition and questions of

statutory interpretation. Liptow v State Farm Mut Auto

Ins Co, 272 Mich App 544, 549; 726 NW2d 442 (2006).

When the language of a statute is unambiguous, we

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must assign the words the Legislature uses their plain

meaning and apply the statute as written. Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 202; 731

NW2d 41 (2007).

Defendant argues that the Court of Claims erred by

failing to grant its motion for summary disposition

because plaintiffs failed to serve defendant notice of the

occurrence of the incident as required by MCL 691.1406

as a precondition to bringing suit under the public

building exception to governmental immunity. We must

agree.

MCL 691.1406 provides, in pertinent part:

Governmental agencies have the obligation to repair

and maintain public buildings under their control when

open for use by members of the public. Governmental

agencies are liable for bodily injury and property damage

resulting from a dangerous or defective condition of a

public building if the governmental agency had actual or

constructive knowledge of the defect and, for a reasonable

time after acquiring knowledge, failed to remedy the con-

dition or to take action reasonably necessary to protect the

public against the condition. Knowledge of the dangerous

and defective condition of the public building and time to

repair the same shall be conclusively presumed when such

defect existed so as to be readily apparent to an ordinary

observant person for a period of 90 days or longer before

the injury took place. As a condition to any recovery for

injuries sustained by reason of any dangerous or defective

public building, the injured person, within 120 days from

the time the injury occurred, shall serve a notice on the

responsible governmental agency of the occurrence of the

injury and the defect. The notice shall specify the exact

location and nature of the defect, the injury sustained and

the names of the witnesses known at the time by the

claimant.

The notice may be served upon any individual, either

personally, or by certified mail, return receipt requested,

who may lawfully be served with civil process directed

80 287 M

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against the responsible governmental agency, anything to

the contrary in the charter of any municipal corporation

notwithstanding....Notice to the state of Michigan shall

be given as provided in section 4.

[

]

[MCL 691.1406 (em-

phasis added).]

We conclude that MCL 691.1406 is clear and unam-

biguous. And we must enforce its plain language as

written. Rowland, supra at 200, 202. First, the empha-

sized language above unambiguously requires compli-

ance with the statute’s notice requirements as a pre-

condition to “any recovery for injuries sustained by

reason of any dangerous or defective public build-

ing....”Second, the statute plainly sets forth elements

required for a compliant notice. The statute specifies

who must serve the notice (“the injured person”), on

whom the notice must be served (“any individual...

who may lawfully be served with civil process directed

against the responsible governmental agency”), what

information the notice must contain (“the exact loca-

tion and nature of the defect, the injury sustained and

the names of the witnesses known at the time by the

claimant”), and the manner in which the notice must be

served (“either personally, or by certified mail, return

receipt requested”). Although the statute does not

explicitly so provide, it patently implies that these

elements of the required notice must be in writing.

Here, plaintiffs failed to serve a notice compliant with

the statute on defendant. Not only were the letters

apparently not mailed certified, return receipt re-

quested, they were not mailed to individuals who could

accept civil process for defendant, did not contain the

information required by the statute, and were not timely.

Accordingly, the plain language of MCL 691.1406 re-

Section 4 is the defective highway exception to governmental immu-

nity, MCL 691.1404. See Rowland, enforcing its similar notice provision

as written.

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quires dismissal of plaintiffs’ claims for injuries alleg-

edly sustained by reason of an alleged defect in defen-

dant’s ice arena.

Plaintiffs’ arguments to the contrary are unavailing.

Citing Brown v Manistee Co Rd Comm, 452 Mich 354;

550 NW2d 215 (1996), plaintiffs argue that (1) they

substantially complied with the notice requirement of

MCL 691.1406 and (2) summary disposition is improper

because defendant failed to establish it was prejudiced.

Brown, supra at 365-366, reaffirmed the rule of Hobbs v

State Hwys Dep’t, 398 Mich 90; 247 NW2d 754 (1976),

which required a showing of prejudice before a failure to

comply with a notice provision would bar a claim

against the government. Both Brown and Hobbs have

been overruled. Rowland, supra at 200, 223. Further,

there is nothing in the wording of MCL 691.1406 that

requires the government to show prejudice before the

statute may be enforced. Reading a prejudice require-

ment into the statute would be contrary to settled

principles of statutory construction in general and the

construction of exceptions to government immunity in

particular. “ ‘[A] court may read nothing into an unam-

biguous statute that is not within the manifest intent of

the Legislature as derived from the words of the statute

itself.’ ” Liptow, supra at 554, quoting Roberts v

Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663

(2002). Moreover, exceptions to governmental immu-

nity are to be narrowly construed. Maskery v Univ of

Michigan Bd of Regents, 468 Mich 609, 614; 664 NW2d

165 (2003).

The record does not support plaintiffs’ argument

that they substantially complied with the statute. As

noted above, plaintiffs completely failed to comply with

the notice requirement of the statute. The letters that

plaintiffs’ counsel mailed were not sent to a particular

82 287 M

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individual but were addressed to defendant’s ice arena

and were apparently not sent certified, return receipt

requested; they were not mailed to persons who could

lawfully receive civil process on defendant’s behalf; they

did not contain the information the statute requires;

and finally, the letters were mailed more than nine

months after the incident, well beyond the 120-day

notice period MCL 691.1406 requires. In essence, plain-

tiffs argue that we should ignore the statute’s require-

ments because defendant may have acquired the infor-

mation that the statute requires the injured party to

convey in the notice by other means. Specifically, plain-

tiffs argue that the alleged defect was apparent and

note that one of defendant’s employees attended to

plaintiff before she was transported for medical treat-

ment. While the second sentence of MCL 691.1406 does

require that as a condition of liability for a defective

building the governmental agency have actual or con-

structive knowledge of the defect before the incident,

this provision does not diminish the separate require-

ment of the last half of the statute that the injured

person serve a notice with the required information in

the specified way, on the appropriate representative of

the agency, and within 120 days “[a]s a condition to any

recovery for injuries sustained by reason of any danger-

ous or defective public building....”MCL691.1406.

Because in this case plaintiffs completely failed to

comply with the notice requirement of MCL 691.1406,

the Court of Claims erred by not granting defendant’s

motion for summary disposition regarding plaintiffs’

claim under that exception to governmental immunity.

Because defendant is entitled to summary disposition on the public

building exception claim, we need not consider whether defendant was

also entitled to summary disposition on the basis of plaintiffs’ failure to

provide the required notice under the Court of Claims Act. MCL 600.6401

et seq.

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Next, we note that our Supreme Court’s order re-

manded this case for our reconsideration of “defen-

dant’s appeal” in light of the Court’s order in Chambers

III. The Court’s order, however, denied leave to appeal

regarding the remaining question, which is plaintiffs’

cross-appeal. But because our Supreme Court’s order

vacated our prior judgment, we adopt our prior opinion

regarding plaintiffs’ cross-appeal.

Plaintiffs assert on cross-appeal that defendant is not

immune from tort liability because the principal plain-

tiff’s injury resulted from a proprietary function. We

disagree.

The governmental tort liability act (GTLA) provides

that, in general, governmental agencies engaged in

governmental functions are immune from tort liability.

MCL 691.1407(1). The GTLA defines “governmental

function” as “an activity that is expressly or impliedly

mandated or authorized by constitution, statute, local

charter or ordinance, or other law.” MCL 691.1401(f).

In Harris v Univ of Michigan Bd of Regents, 219

Mich App 679; 558 NW2d 225 (1996), we held that

according to well-established caselaw “this definition is

to be broadly applied and requires only that ‘there be

some constitutional, statutory or other legal basis for

the activity in which the governmental agency was

engaged.’ ” Id. at 684 (citations omitted; emphasis in

original). Also, we look to the general activity involved

rather than the specific conduct engaged in when the

alleged injury occurred. Smith v Dep’t of Pub Health,

428 Mich 540, 609-610; 410 NW2d 749 (1987) (opinion

by B

RICKLEY,

J.).

The GTLA provides an exception to governmental

immunity when an agency is engaged in proprietary

functions. MCL 691.1413 states as follows:

84 287 M

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76 [Jan

The immunity of the governmental agency shall not

apply to actions to recover for bodily injury or property

damage arising out of the performance of a proprietary

function as defined in this section. Proprietary function

shall mean any activity which is conducted primarily for

the purpose of producing a pecuniary profit for the govern-

mental agency, excluding, however, any activity normally

supported by taxes or fees. No action shall be brought

against the governmental agency for injury or property

damage arising out of the operation of proprietary func-

tion, except for injury or loss suffered on or after July 1,

1965.

To constitute a proprietary function an activity “(1)

must be conducted primarily for the purpose of produc-

ing a pecuniary profit, and (2) it cannot be normally

supported by taxes and fees.” Coleman v Kootsillas, 456

Mich 615, 621; 575 NW2d 527 (1998). That the activity

consistently generates a profit may show an intent to

produce a profit. Id. But, that “is not sufficient to make

the activity proprietary because generating a profit

must be the primary motive.” Harris, supra at 690 n 2

(citation omitted; emphasis in original). Where the

profit is deposited and how it is spent are relevant

factors in determining the primary purpose of the

activity as well. Coleman, supra at 621. “[U]se of profits

to defray the expenses of the activity itself indicates a

nonpecuniary purpose.” Harris, supra at 690 n 2 (cita-

tion omitted).

In Harris, we found that the University of Michigan

was engaged in a governmental function under the

GTLA in its operations of its athletic department and

intercollegiate gymnastics team. We stated:

Given the broad definition of a governmental function,

and in light of the history of intercollegiate athletics at

Michigan universities and colleges that has historic sup-

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port from the Michigan Legislature, we find that intercol-

legiate athletics is a governmental function for purposes of

immunity. [Id. at 685].

Plaintiffs contend that times have changed since

Harris and argue that defendant’s expansion of athletic

facilities, firing and hiring of specific coaches, and

concern with the success of its teams show that defen-

dant intends to financially profit from its athletics

department. In short, plaintiffs make factual allega-

tions about defendant’s athletic program without mak-

ing a meaningful legal argument. Plaintiffs allege that

the department is profitable and claim that it receives

$3,829,293 in revenue above its expenses, but defen-

dant has offered an affidavit stating the ice hockey

program specifically has been operating at a loss for the

last 20 years. Plaintiffs also assert that the profits are

used to sustain defendant, failing to recognize that “[a]

governmental agency may conduct an activity on a

self-sustaining basis without being subject to the pro-

prietary function exception.” Harris, supra at 690 (ci-

tation omitted).

We conclude that Harris requires us to hold that

defendant’s operation of its ice hockey program did not

constitute a proprietary function. Further, regardless of

Harris, plaintiffs have failed to show that defendant

operated its ice hockey program primarily to generate a

profit.

We affirm the grant of summary disposition to defen-

dant as to the proprietary function claim but reverse

the denial of summary disposition to defendant on the

public building exception claim. Defendant, being the

prevailing party, may tax costs pursuant to MCR 7.219.

86 287 M

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MOSSING v DEMLOW PRODUCTS, INC

Docket No. 287643. Submitted December 9, 2009, at Detroit. Decided

January 7, 2010, at 9:05 a.m.

Margaret Mossing brought an action in the Lenawee Circuit Court,

Timothy P. Pickard, J., against Demlow Products, Inc., and James

Demlow, alleging breach of contract, conversion, and a violation of

MCL 600.2961 with regard to whether plaintiff was due commissions

following the termination of the parties’ business relationship. De-

fendants counterclaimed, raising affirmative defenses including ac-

cord and satisfaction. The trial court granted summary disposition in

favor of defendants, deciding the accord and satisfaction issue in

favor of defendant and stating that resolution of this issue disposed of

all the claims and counterclaims. The trial court did not consider

defendants’ request for attorney fees and costs at that time. Plaintiff

appealed and defendants cross-appealed the order granting summary

disposition. Thereafter, the trial court entered a postjudgment order

denying defendants’ request for fees and costs. Defendants did not

file a separate appeal from that order, but sought to challenge it as

part of their cross-appeal from the order granting summary disposi-

tion. On appeal, plaintiff argued that there was no accord and

satisfaction and that the Court of Appeals lacks jurisdiction to

consider defendants’ challenge to the postjudgment order denying

their request for attorney fees and costs.

The Court of Appeals held:

Where a cross-appeal from an original judgment is filed in the

Court of Appeals before the trial court enters an order denying an

award of attorney fees and costs with regard to the original judgment,

a separate appeal must be taken from the postjudgment order

denying fees and costs. There was proper accord and satisfaction

according to MCL 440.3311(4). The trial court did not err by granting

summary disposition in favor of defendants on this issue.

Affirmed.

1. J

UDGMENTS —

OSTJUDGMENT

RDERS —

TTORNEY

EES —

INAL

RDERS

A postjudgment order awarding or denying attorney fees and costs

under MCR 2.403, 2.405, 2.265, or other law or court rule is a final

judgment or final order (MCR 7.202[6][a][iv]).

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2. A

PPEAL —

OSTJUDGMENT

RDERS

A separate appeal must be taken from a postjudgment order denying

a defendant’s request for an award of attorney fees and costs

where, before the trial court entered the order denying fees and

costs, the defendant filed a cross-appeal in the Court of Appeals

with regard to the original judgment.

Garan Lucow Miller, P.C. (by Robert D. Goldstein and

Thomas R. Paxton), for plaintiff.

Philip M. Moilanen, P.C. (by Philip M. Moilanen), for

defendants.

Before: D

ONOFRIO

,P.J., and S

AWYER

and O

WENS

,JJ.

URIAM

. Although the primary issue raised in

this appeal is a rather straightforward application of

the principle of accord and satisfaction, the cross-appeal

raises an interesting jurisdictional question regarding

whether a challenge to a postjudgment order denying

attorney fees may be raised as part of a cross-appeal

from the original judgment itself. We hold that where

the cross-appeal from the original judgment was filed in

this Court before the trial court entered the order

denying an award of attorney fees and costs, a separate

appeal must be taken from the postjudgment order

denying fees and costs.

Plaintiff is an independent manufacturer’s represen-

tative for suppliers of automobile parts. Defendant

Demlow Products, Inc., is a manufacturer of wire forms

that are used to build seats for automobiles. Plaintiff

and defendants entered into a business relationship in

1991 and continued until June 2006. On June 21, 2006,

defendants sent plaintiff a correspondence informing

plaintiff that they were terminating their contract and

stating that plaintiff would receive her commissions

through June 30, 2006. Included with the correspon-

88 287 M

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dence was a check for $7,364.94, and on the comment

line was written, “JUNE 2006 FINAL PMT.” Plaintiff’s

attorney responded and explained that plaintiff would

be cashing the check for $7,364.94 with the understand-

ing that the future commissions were still in dispute,

and therefore the check would not be considered as a

final payment.

When further payments were not forthcoming, plain-

tiff filed the instant action alleging breach of contract,

conversion, and a violation of MCL 600.2961. Defen-

dants filed a counterclaim and also raised various

affirmative defenses, including accord and satisfaction.

Ultimately, the trial court granted summary disposition

in favor of defendants, concluding that there was no

genuine issue of material fact on the issue of accord and

satisfaction and that this issue disposed of all the claims

and counterclaims. The trial court, however, separately

considered the issue of defendants’ request for an

award of attorney fees and costs. Plaintiff filed a claim

of appeal, and defendants filed a claim of cross-appeal,

from the order granting summary disposition. Thereaf-

ter, the trial court entered its postjudgment order

denying defendants’ request for attorney fees and costs.

Although this is considered a final order under MCR

7.202(6)(a)(iv) and may be appealed as of right, defen-

dants did not file a separate appeal and merely raised

their challenge to the denial of fees and costs as part of

their cross-appeal.

We turn first to plaintiff’s argument on appeal that

there has been no accord and satisfaction of her claims

because the notation on the check sent to plaintiff was

insufficient to put her on notice that defendants in-

tended a discharge of any and all claims. We disagree.

The trial court granted defendants’ motion for sum-

mary disposition as to plaintiff’s complaint on the basis

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of MCR 2.116(C)(10) (no genuine issue as to any mate-

rial fact). This Court reviews de novo the granting of

such a motion.

In considering a motion pursuant to MCR

2.116(C)(10), a court considers affidavits, pleadings,

depositions, admissions, and other evidence submitted

by the parties in a light most favorable to the nonmov-

ing party.

Where the proffered evidence fails to estab-

lish a genuine issue of material fact, the moving party is

entitled to judgment as a matter of law.

A litigant’s

mere pledge to establish at trial that a genuine issue of

material fact exists is not sufficient to overcome sum-

mary disposition.

MCL 440.3311, not the common law, applies to an

accord and satisfaction involving a negotiable instru-

ment such as a check.

MCL 440.3311(4) states:

A claim is discharged if the person against whom the

claim is asserted proves that within a reasonable time

before collection of the instrument was initiated, the claim-

ant, or an agent of the claimant having direct responsibility

with respect to the disputed obligation, knew that the

instrument was tendered in full satisfaction of the claim.

Not only did defendants send a check containing the

words “JUNE 2006 FINAL PMT.” on the memo line,

but it also was sent with correspondence indicating

defendants’ intention to terminate the contract. Upon

receiving this check and correspondence, plaintiff’s

attorney sent a responding correspondence stating:

Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663

(2002).

Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999).

Id. at 120.

Id. at 121.

Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 75-76; 711

NW2d 340 (2006).

90 287 M

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My client...received a check of $7364.94, representing

a payment for June. The memo on the check also indicated

that it was a final payment. As you know, the issue of

future payment is in dispute in this matter and therefore,

the check is being cashed with the understanding that it is

not, in fact, a final payment....

Plaintiff fully understood that the check was tendered

for final payment. Not only did plaintiff acknowledge in

this correspondence that it was for final payment, she

cashed the check knowing that the check was intended

to be for final payment. This was proper accord and

satisfaction according to MCL 440.3311(4), and the trial

court did not err by granting summary disposition on

this issue.

Our resolution of the accord and satisfaction issue

renders plaintiff’s second issue on appeal and defen-

dants’ first and second issues on cross-appeal moot.

But defendants also argue on their cross-appeal a

third and final issue concerning attorney fees and costs,

which is not resolved by resolution of the accord and

satisfaction issue. Defendants argue that the trial court

erred by denying attorney fees and costs to defendants.

Plaintiff responds that this Court lacks jurisdiction to

consider this issue because defendants did not claim an

appeal from the order denying fees and costs. We agree.

A postjudgment order awarding or denying attorney

fees and costs is a “final order” under MCR

7.202(6)(a)(iv) that may be appealed as of right. But it is

less than clear whether such an order must be sepa-

rately appealed, or whether an issue involving the

awarding or denying of fees and costs that is covered in

a postjudgment order may be raised as part of an

appeal, or in this case, cross-appeal, from an actual final

judgment itself.

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Plaintiff does not refer us to any controlling prece-

dent on this issue, nor were we able to find any. The

closest case on point, Costa v Community Emergency

Med Services, Inc,

is not directly relevant. In Costa, the

defendants appealed as of right an order denying their

motion for summary disposition based upon govern-

mental immunity. MCR 7.202(6)(a)(v) provides that an

order denying summary disposition based upon govern-

mental immunity is a final order and therefore imme-

diately appealable as of right. The plaintiffs filed a

cross-appeal, challenging the circuit court’s denial of

their motion for summary disposition based upon an

argument that two of the defendants had failed to file

an affidavit of meritorious defense as required by stat-

ute. Those defendants argued that this Court lacked

jurisdiction to consider the cross-appeal because it went

outside the limited scope of the appeal itself. This Court

disagreed.

This Court acknowledged that the scope of the appeal

as of right under MCR 7.202(6)(a)(v) was limited in that

case to issues related to the denial of summary disposi-

tion based upon governmental immunity.

But this

Court went on to conclude that a cross-appeal is not so

limited. Citing MCR 7.207(A)(1), the Costa Court con-

cluded that there is a general right to claim a cross-

appeal and that the court rules do not limit the scope of

that cross-appeal.

Indeed, the Court noted that “MCR

7.207 does not restrict a cross-appellant from challenging

whatever legal rulings or other perceived improprieties

occurred during the trial court proceedings.”

The Court

263 Mich App 572; 689 NW2d 712 (2004).

Costa, supra at 583.

Costa, supra at 583-584.

Id. at 584.

92 287 M

ICH

87 [Jan

went on to note that, even if the initial appeal is

abandoned, the cross-appeal continues.

But Costa is hardly controlling on the issue before us.

Not only does it deal with a different subrule of MCR

7.202(6), it also involved an order (denial of summary

disposition) that is inherently interlocutory other than

the fact that the court rule defines it as being a final

order, while our case involves a postjudgment order.

This leads to another difference in that the case at bar

involves an order denying fees and costs that had not

even been entered in the trial court until after the

claims of appeal and cross-appeal were filed in this case.

That is, defendants challenge on their cross-appeal an

order that did not even exist at the time they filed the

cross-appeal. Although the time line in Costa is unclear,

presumably the order challenged in the cross-appeal

had been entered (or certainly could have been entered)

before the appeal and cross-appeal were filed.

The broad language in Costa might support the

proposition that a postjudgment order denying fees and

costs can be challenged as part of the appeal from the

final judgment itself because it is part of “whatever

legal rulings or other perceived improprieties occurred

during the trial court proceedings.”

But we conclude

that it would be reading Costa and the court rules too

broadly to conclude that a claim of cross-appeal invokes

this Court’s jurisdiction to challenge an order entered

in the trial court after the claim of cross-appeal was

filed in this Court.

Because we need not decide in this case whether a

postjudgment order granting or denying an award of

attorney fees and costs that is entered before a claim of

cross-appeal is filed in this Court must nevertheless be

Id.

2010] M

OSSING V

EMLOW

RODUCTS

separately appealed, we decline to do so. Rather, we hold

in this case only that a separate appeal from such a

postjudgment order must be filed when that order is

entered in the trial court after the claim of cross-appeal

is filed in this Court.

We recognize that failing to address the merits of this

issue does a certain injustice in this case because

defendants would very likely prevail on the merits given

the mandatory, rather than discretionary, nature of the

award of attorney fees and costs under MCL

600.2961(6) and that the trial court most likely erred by

denying an award as to the claim raised under that

statute. Nonetheless, we believe that we have no choice

but to conclude that this Court’s jurisdiction has not

been properly invoked to allow us to review that order.

Defendants had to have filed a claim of appeal from the

order denying an award of fees and costs or, having

failed to do that in a timely manner, filed an application

for leave to appeal that order.

Affirmed. No costs, neither party having prevailed in

full.

94 287 M

ICH

87 [Jan

COUNTY ROAD ASSOCIATION OF MICHIGAN v GOVERNOR

Docket Nos. 288653 and 288691. Submitted December 8, 2009, at

Lansing. Decided January 12, 2010, at 9:00 a.m.

The County Road Association of Michigan and the Chippewa County

Road Commission brought an action in the Ingham Circuit Court,

William E. Collette, J., against the Governor, the state, and various

state agents and agencies, seeking to prevent or reverse the

transfer, pursuant to executive order of the Governor, of certain

revenue funds from the Michigan Transportation Fund to the

state’s general fund or various state departments in fiscal year

2001-2002 that were allegedly restricted from being transferred by

Const 1963, art 9, § 9. Plaintiffs then amended their complaint to

include allegations concerning fiscal year 2002-2003. The Michi-

gan Public Transit Association and others intervened. Plaintiffs

moved for a preliminary injunction with regard to certain trans-

fers, which the trial court granted in part. Defendants appealed

that order by leave granted, and the Court of Appeals reversed the

injunction in part in an unpublished opinion per curiam, issued

January 13, 2004 (Docket No. 245931). Plaintiffs also moved for a

preliminary injunction with respect to the transfer of certain other

funds, and the trial court granted the motion. Defendants ap-

pealed that order by leave granted, and the Court of Appeals

vacated the preliminary injunction and remanded the matter to

the circuit court for the entry of a judgment in favor of defendants.

260 Mich App 299 (2004). On application by the intervenors for

leave to appeal, the Supreme Court ordered oral argument on the

application, then affirmed the judgment of the Court of Appeals

and remanded the matter to the circuit court for the entry of a

judgment in favor of defendants. 474 Mich 11 (2005). After the

appeals regarding the preliminary injunctions were resolved, the

case proceeded to a bench trial. The trial court ordered the

restoration of certain transferred funds and required the state to

perform a new cost-allocation study to determine the cost of

collecting certain constitutionally dedicated revenues. The trial

court also denied any unaddressed pending motions, including

defendants’ motion for summary disposition that alleged that

plaintiffs lacked standing to pursue the cause of action. Plaintiffs

2010] C

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and defendants appealed the trial court’s final opinion and order,

and the Court of Appeals consolidated the appeals.

The Court of Appeals held:

1. Plaintiffs lack standing to pursue this cause of action.

2. The County Road Association of Michigan would have

standing to bring this suit in the interest of its members if the

members had standing as individual plaintiffs. However, its mem-

bers lack standing.

3. Plaintiffs failed to establish that they suffered an injury in

fact because they have not indicated that they suffered a particu-

larized injury. The injury plaintiffs allege, that they received

reduced distributions from the Michigan Transportation Fund and

related funds, does not constitute an injury that is distinct from

that suffered by the public at large.

4. Plaintiffs failed to establish that a causal connection exists

between an injury and the conduct complained of, namely, a

reduction in the distribution of Michigan Transportation Fund

revenues to the county road commissions. Plaintiffs failed to

satisfy the constitutional test for standing set forth in Lee v

Macomb Co Bd of Comm’rs, 464 Mich 726 (2001), and Lujan v

Defenders of Wildlife, 504 US 555 (1992), and therefore have not

established standing in this case.

5. Even if plaintiffs’ lack of standing were not at issue, this

cause of action would still be barred by the doctrine of sovereign

immunity. All defendants in this case are state agents and agencies

that are subject to sovereign immunity. The state has not waived

its immunity and consented to be sued in this type of lawsuit by

either an act of the Legislature or through the constitution. The

trial court’s order must be vacated and the case must be remanded

to the trial court for dismissal of the cause of action.

Vacated and remanded for dismissal.

1. A

CTIONS —

TANDING

Standing is not established by a party by merely indicating a

subjective interest in the litigation; instead, a party must demon-

strate an interest in the litigation that is distinct from that of the

general public; standing requires a demonstration that the plain-

tiff’s substantial interest will be detrimentally affected in a man-

ner different from the citizenry at large.

2. A

CTIONS —

TANDING —

LEMENTS

The irreducible constitutional minimum of standing contains three

elements; first, the plaintiff must have suffered an injury in fact,

96 287 M

ICH

95 [Jan

which is an invasion of a legally protected interest that is concrete

and particularized and actual or imminent, not conjectural or

hypothetical; second, there must be a causal connection between

the injury and the conduct complained of, that is, the injury has to

be fairly traceable to the challenged action of the defendants and

not the result of the independent action of some third party not

before the court; third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision; the party invoking jurisdiction bears the burden of

establishing these elements.

3. A

CTIONS —

OVEREIGN

MMUNITY —

AIVER OF

MMUNITY

The state can only waive its immunity from suit and consent to be

sued through an act of the Legislature or through the constitution.

4. G

OVERNMENTAL

MMUNITY —

ONSTITUTIONAL

Governmental immunity generally is not available in a state court

action where it is alleged that the state violated a right conferred

by the state constitution; a constitutional mandate to use

transportation-related taxes and fees for transportation-related

purposes does not necessarily constitute a right conferred by the

state constitution.

Levine Law Group, PLLC (by Michael C. Levine), for

plaintiffs.

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

Solicitor General, and John F. Szczubelek, Assistant

Attorney General, for defendants.

Before: T

ALBOT

,P.J., and O’C

ONNELL

and D

AVIS

,JJ.

O’C

ONNELL

, J. This case arises from plaintiffs’ oppo-

sition to decisions by defendants, state agents and

agencies, to reallocate certain revenues in fiscal years

2001-2002 and 2002-2003 in an attempt to balance the

state budget. Plaintiffs filed suit to prevent the transfer

of these funds, claiming that they were constitutionally

dedicated. After a bench trial, the Ingham Circuit Court

ordered the restoration of certain transferred funds and

required the state to perform a new cost-allocation

2010] C

’

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study to determine the cost of collecting certain consti-

tutionally dedicated revenues. Both plaintiffs and de-

fendants appealed this order, and we consolidated the

appeals. We conclude that plaintiffs lack standing to

pursue this cause of action and, therefore, we vacate the

trial court’s order and remand for dismissal of this

cause of action.

Plaintiff County Road Association of Michigan

(CRAM) is a nonprofit corporation that represents the

interests of the county road commissions or public

works departments in all 83 Michigan counties.

The

county road commissions receive distributions from the

constitutionally mandated Michigan Transportation

Fund (MTF) to maintain and construct roads within

their respective counties.

On November 6, 2001, Governor John Engler issued

Executive Order No. 2001-9, which was designed to

reduce state expenditures by approximately $319 mil-

lion.

One component of this executive order involved

the transfer of approximately $144 million from various

revenue funds to the state’s general fund in the upcom-

ing fiscal year.

Although plaintiff Chippewa County Road Commission apparently is

a member of CRAM, it is listed as a separate plaintiff in this cause of

action. Wayne County does not have a county road commission; appar-

ently, it is the only county in Michigan in which the county’s Department

of Public Services oversees the county roads. The Wayne County Depart-

ment of Public Services receives distributions from the Michigan Trans-

portation Fund for road maintenance and related programs within

Wayne County and is a member of CRAM.

Pursuant to Const 1963, art 5, § 20, the Governor, with the approval

of the appropriating committees in both houses of the Legislature, has

the authority to reduce state expenditures when actual revenues for a

fiscal year are expected to fall below the estimated revenues on which the

appropriations for that fiscal year are based. In this case, the relevant

appropriations committees in both houses of the Legislature concurred

with the executive order in question.

98 287 M

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95 [Jan

Soon after this executive order was issued, plaintiffs

filed a cause of action against the Governor and various

state agents and agencies challenging the transfer of

funds from the MTF on constitutional grounds. In

particular, plaintiffs challenged the transfer of $40

million from the MTF to the Department of State

(DOS), resulting in a transportation budget of $95.814

million for the 2001-2002 fiscal year, claiming that this

transfer, combined with the amount previously appro-

priated to the DOS, created a total appropriation to the

DOS that was in excess of what was necessary to cover

expenses incurred in the collection of motor vehicle

registration taxes and fees. In an amended complaint

filed after the beginning of the 2002-2003 fiscal year,

plaintiffs challenged the appropriation of $94.5 million

from the MTF to the DOS, arguing that this appropria-

tion also was more than was necessary to cover ex-

penses for the collection of motor vehicle registration

taxes and fees. Further, plaintiffs claimed that certain

revenue that the DOS derived from the sale of data and

information amassed from MTF funds must be used for

transportation purposes.

Plaintiffs also challenged the transfer of $8 million

from the MTF to the Department of Treasury (Trea-

sury), claiming that this transfer was also “in excess of

the expenses necessary for collection of specific taxes on

motor vehicle and aviation fuels and that portion of the

general sales tax imposed on motor vehicle fuel, parts

and accessories designated by constitution for restricted

transportation purposes.” Further, plaintiffs challenged

the appropriation of $10.225 million from the MTF to

the Treasury for the 2002-2003 fiscal year, arguing that

this appropriation was also “in excess of expenses

necessary for collection of motor vehicle registration

taxes and fees.”

2010] C

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Further, plaintiffs challenged the transfer to the

state general fund of $12.75 million of sales tax revenue

appropriated to the Comprehensive Transportation

Fund (CTF), as well as the transfer to the general fund

of $2.25 million of revenue acquired from the issuance

of operator’s licenses and originally appropriated to the

Transportation Economic Development Fund (TEDF),

arguing that the Governor lacked the authority to

reappropriate or transfer these funds by executive

order and without appropriation by the Legislature

because the use of these funds is restricted by Article 9,

§ 9 of the Michigan Constitution.

Plaintiffs also maintained that “[t]he Chippewa

County Road Commission and all 83 Michigan counties

have received reduced distributions from restricted

transportation funds because of the improper transfers

of restricted transportation funds as alleged.” They

asked not only that the funds that they claimed were

improperly transferred from the MTF, CTF, and TEDF

be transferred back, but they also requested that the

Governor’s reappropriation of these funds be declared

unconstitutional and that the court “[e]njoin the De-

fendants from using MTF funds for purposes other than

those permitted by Article IX § 9 and statute.”

About the time plaintiffs filed their second com-

plaint, they moved to enjoin the transfer of $40 million

to the DOS or the state general fund for the fiscal year

2002-2003, which would be used to cover expenses

incurred in the collection of sales taxes. The trial court

granted their motion in part, issuing a preliminary

injunction precluding defendants from transferring $20

million from the MTF to cover expenses incurred in the

collection of sales taxes, determining that only $20

million of the disputed amount constituted unnecessary

collection expenses. Defendants asked for and were

100 287 M

ICH

95 [Jan

granted leave to challenge the injunction on appeal, and

this Court reversed the injunction in part.

Co Rd Ass’n

of Michigan v Governor, unpublished opinion per cu-

riam of the Court of Appeals, issued January 13, 2004

(Docket No. 245931).

Plaintiffs also moved for, and the trial court granted,

a preliminary injunction precluding defendants from

transferring funds from the CTF to the DOS, Treasury,

or state general fund, as appropriated by Executive

Order No. 2001-9, or restoring these funds if already

transferred. This Court granted leave to appeal, vacated

the preliminary injunction, and remanded the matter to

the circuit court for entry of a judgment in favor of the

defendants.

Co Rd Ass’n of Michigan v Governor, 260

Mich App 299; 677 NW2d 340 (2004). Our Supreme

Court affirmed this Court’s decision, finding that cer-

tain sales tax revenues were not constitutionally dedi-

cated for transportation-related purposes pursuant to

This Court reversed the injunction with respect to amounts that

plaintiffs claimed were overcharged sales tax collection expenses, noting

that Const 1963, art 9, § 9 permits “the deduction of ‘necessary collection

expenses’ in obtaining tax revenue that it otherwise dedicates to trans-

portation purposes” and does not otherwise preclude the use of MTF

allocations to collect these taxes if the collection of these taxes “inciden-

tally further[s] other governmental functions.” Co Rd Ass’n of Michigan

v Governor, unpublished opinion per curiam of the Court of Appeals,

issued January 13, 2004 (Docket No. 245931), at 3. This Court upheld the

injunction with respect to the amount that the DOS charged the MTF

“[w]ith respect to the cost of processing automobile dealer licensing,

driver improvement programs, and driver’s license appeals,” because the

DOS apparently alleged that it considered the funds used for these

activities “necessary collection expenses,” but did not explain “how the

costs for these activities could possibly be reasonably characterized as

expenses incurred in the collection of sales taxes.” Id., unpub op at 3-4.

Defendants never raised the issue of standing when they sought leave

to appeal the issuance of any of these injunctions and, accordingly, leave

was never granted with respect to the issue of standing. Accordingly, this

Court was not in a position to address standing in the earlier interlocu-

tory appeals in this case.

2010] C

’

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101

Const 1963, art 9, § 9 and, therefore, were properly

subject to the Governor’s authority to reduce state

expenditures. Co Rd Ass’n of Michigan v Governor, 474

Mich 11; 705 NW2d 680 (2005).

After the appeals concerning the preliminary injunc-

tion were resolved, this case proceeded to a bench trial.

Proofs were presented, and the trial court issued a final

opinion and order. In its final order, the trial court

ordered that the state return $7.3 million from the

general fund to the MTF to restore funds improperly

appropriated or transferred to the DOS in fiscal year

2001-2002 to fund driver’s license appeals, driver im-

provement programs, and licensing of automobile deal-

ers, and to return $6.5 million to the MTF to restore

funds improperly appropriated to the DOS for these

purposes in fiscal year 2002-2003. The trial court then

ordered that the state perform a new cost-allocation

study that would reflect current costs associated with

sales tax collections, apparently to govern future cost

allocations. The trial court denied plaintiffs’ claim that

revenue generated from the sale of data amassed using

MTF funds should be restricted to transportation-

related uses, dismissed with prejudice all claims that it

had not addressed (including defendants’ claims regard-

ing standing and immunity), and denied all unad-

dressed pending motions.

Surprisingly, however, the trial court never ruled on

the issue of standing until it issued its final opinion and

order in this case, although the issue had first been

raised early on in these proceedings. Defendants first

raised the issue in a motion for summary disposition

filed in May 2002. Although plaintiffs filed a response to

that motion in June 2002 and the trial court enter-

tained a discussion on the issue during a motion hear-

ing shortly thereafter, the trial court never issued an

102 287 M

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95 [Jan

order on the motion. Defendants resurrected their

motion for summary disposition in January 2007, again

claiming that plaintiffs lacked standing. Plaintiffs again

responded, and the parties argued the issue at a motion

hearing before the trial court. However, the trial court

declined to address the issue until after it heard the

proofs at trial, and defendants did not have an order

regarding standing from which to appeal. After a bench

trial, in its final order, the trial court summarily denied

this motion for summary disposition in conjunction

with all other unaddressed pending motions. It never

indicated the reason for its decision on the record.

However, we conclude that plaintiffs’ standing to

bring this cause of action is the key issue in this case,

and we agree with defendants’ position that plaintiffs

have failed to establish standing. For this reason, we

vacate the trial court’s order and remand for dismissal

of this cause of action.

Our Supreme Court has recognized that standing is

essential to ensure a party’s interest in the outcome of

litigation, in order to ensure sincere and vigorous

advocacy. House Speaker v Governor, 443 Mich 560, 572;

506 NW2d 190 (1993). Further, ensuring that a party

has standing to present a case is essential to preserving

the constitutional separation of powers. Nat’l Wildlife

Federation v Cleveland Cliffs Iron Co, 471 Mich 608,

612; 684 NW2d 800 (2004). In Lee v Macomb Co Bd of

Comm’rs, 464 Mich 726, 735-738; 629 NW2d 900

(2001), our Supreme Court explained the importance of

ensuring that a party had standing to present a case or

controversy, in order to prevent usurpation of legisla-

tive and executive powers by the judicial branch:

The question of a party’s legal standing is one of law that we review

de novo. American Family Ass’n of Michigan v Michigan State Univ Bd

of Trustees, 276 Mich App 42, 44-45; 739 NW2d 908 (2007).

2010] C

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103

It is important, initially, to recognize that in Michigan,

as in the federal system, standing is of great consequence

so that neglect of it would imperil the constitutional

architecture whereby governmental powers are divided

between the three branches of government.

Standing, as a requirement to enter the courts, is a

venerable doctrine in the federal system that derives from

US Const, art III, § 1, which confers only “judicial power”

on the courts and from US Const, art III, § 2’s limitation of

the judicial power to “Cases” and “Controversies.” In

several recent cases, the United States Supreme Court has

discussed the close relationship between standing and

separation of powers. In Lewis v Casey, 518 US 343, 349;

116 S Ct 2174; 135 L Ed 2d 606 (1996), Justice Scalia,

writing for the majority, said:

“[T]he doctrine of standing [is] a constitutional prin-

ciple that prevents courts of law from undertaking tasks

assigned to the political branches. It is the role of courts to

provide relief to claimants, in individual or class actions,

who have suffered, or will imminently suffer, actual harm;

it is not the role of courts, but that of the political branches,

to shape the institutions of government in such fashion as

to comply with the laws and the Constitution.” [Citations

omitted.]

Lewis was foreshadowed in Lujan v Defenders of Wild-

life, 504 US 555, 559-560; 112 S Ct 2130; 119 L Ed 2d 351

(1992), where Justice Scalia, again speaking for the Court,

explained:

“[T]he Constitution’s central mechanism of separation of

powers depends largely upon common understanding of

what activities are appropriate to legislatures, to execu-

tives, and to courts.... One of those landmarks, setting

apart the ‘Cases’ and ‘Controversies’ that are of the

justiciable sort referred to in Article III—‘serv[ing] to

identify those disputes which are appropriately resolved

through the judicial process,’—is the doctrine of standing.

Though some of its elements express merely prudential

considerations that are part of judicial self-government, the

104 287 M

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95 [Jan

core component of standing is an essential and unchanging

part of the case-or-controversy requirement of Article III.”

[Citations omitted.]

***

In Michigan, standing has developed on a track parallel

to the federal doctrine, albeit by way of an additional

constitutional underpinning. In addition to Const 1963, art

6, § 1 which vests the state “judicial power” in the courts,

Const 1963, art 3, § 2 expressly directs that the powers of

the legislature, the executive, and the judiciary be separate.

Concern with maintaining the separation of powers, as in

the federal courts, has caused this Court over the years to

be vigilant in preventing the judiciary from usurping the

powers of the political branches. Early on, the great con-

stitutional scholar Justice T

HOMAS

M. C

OOLEY

discussed the

concept of separation of powers in the context of declining

to issue a mandamus against the Governor in Sutherland v

Governor, 29 Mich 320, 324 (1874):

“Our government is one whose powers have been care-

fully apportioned between three distinct departments,

which emanate alike from the people, have their powers

alike limited and defined by the constitution, are of equal

dignity, and within their respective spheres of action

equally independent. One makes the laws, another applies

the laws in contested cases, while the third must see that

the laws are executed. This division is accepted as a

necessity in all free governments, and the very apportion-

ment of power to one department is understood to be a

prohibition of its exercise by either of the others. The

executive is forbidden to exercise judicial power by the

same implication which forbids the courts to take upon

themselves his duties.”

However, standing is not established by merely indi-

cating a subjective interest in the litigation; instead, a

party must demonstrate an interest in the litigation

2010] C

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105

that is distinct from that of the general public. In House

Speaker, our Supreme Court explained:

The concept of standing represents a party’s interest in

the outcome of litigation that ensures sincere and vigorous

advocacy. However, a commitment to vigorous advocacy

alone is not enough. Rather, “[s]tanding requires a demon-

stration that the plaintiff’s substantial interest will be

detrimentally affected in a manner different from the

citizenry at large.” [House Speaker, supra at 572 (citation

omitted).]

Although our Supreme Court’s view of the circum-

stances needed to establish standing has been indeter-

minate in the past, see Detroit Fire Fighters Ass’n v

Detroit, 449 Mich 629; 537 NW2d 436 (1995), in 2001 in

Lee our Supreme Court adopted the test for standing

articulated by the United States Supreme Court in

Lujan v Defenders of Wildlife, 504 US 555, 559-560; 112

S Ct 2130; 119 L Ed 2d 351 (1992). The Lujan test held:

“[T]he irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must have

suffered an ‘injury in fact’—an invasion of a legally pro-

tected interest which is (a) concrete and particularized, and

(b) ‘actual or imminent, not “conjectural” or “hypotheti-

cal.’ ” Second, there must be a causal connection between

the injury and the conduct complained of—the injury has

to be ‘fairly...trace[able] to the challenged action of the

defendant, and not... th[e] result [of] the independent

action of some third party not before the court.’ Third, it

must be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision.’

“The party invoking...jurisdiction bears the burden of

establishing these elements.” [Lee, supra at 739-740, quot-

ing Lujan, supra at 560-561 (citations omitted).]

In adopting the Lujan test, our Supreme Court ex-

plained, “[T]he Lujan test has the virtues of articulat-

ing clear criteria and of establishing the burden of

106 287 M

ICH

95 [Jan

demonstrating these elements. Moreover, its three ele-

ments appear to us to be fundamental to standing; the

United States Supreme Court described them as estab-

lishing the ‘irreducible constitutional minimum’ of

standing.”

Lee, supra at 740.

In Nat’l Wildlife, supra at 614-617, our Supreme

Court reaffirmed its holding in Lee and, more impor-

tantly, explained both how and why a plaintiff must

have a particularized injury in order to establish stand-

ing:

The “judicial power” has traditionally been defined by a

combination of considerations: the existence of a real

dispute, or case or controversy; the avoidance of deciding

hypothetical questions; the plaintiff who has suffered real

harm; the existence of genuinely adverse parties; the

sufficient ripeness or maturity of a case; the eschewing of

cases that are moot at any stage of their litigation; the

ability to issue proper forms of effective relief to a party;

the avoidance of political questions or other non-justiciable

controversies; the avoidance of unnecessary constitutional

When adopting the Lujan test to the facts of the case, the Lee Court

determined that the plaintiffs failed to establish an injury in fact and,

therefore, lacked standing. In Lee, the plaintiffs, who had not sought

relief under the soldiers’ relief fund act, MCL 35.21 et seq., had filed a

cause of action to compel the Macomb County Board of Commissioners to

establish a veterans’ relief fund in accordance with the act. Lee, supra at

729. The plaintiffs had merely argued that “they ‘should receive’ and

‘should have received, the benefit of the property tax levy required by

MCL 35.21,’ and that the failure to levy and collect the tax set forth in the

soldiers’ relief fund act ‘has caused, and continues to cause, plaintiffs

great harm and damage.’ ” Id. at 740. The Lee Court concluded that even

if these assertions of wrongdoing were accepted as true, they could not

satisfy the “injury in fact” requirement of standing because the plaintiffs

had merely claimed that they suffered “ ‘great harm and damage’ ” as a

result of the failure of the board of commissioners to levy the requested

tax and, consequently, it was not “readily apparent how the collection of

a tax pursuant to the act would have benefitted plaintiffs in a concrete

and particularized manner.” Id.

2010] C

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107

issues; and the emphasis upon proscriptive as opposed to

prescriptive decision making.

Perhaps the most critical element of the “judicial

power” has been its requirement of a genuine case or

controversy between the parties, one in which there is a

real, not a hypothetical, dispute, Muskrat v United States,

219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in

which the plaintiff has suffered a “particularized” or per-

sonal injury. Massachusetts v Mellon, 262 US 447, 488; 43

S Ct 597; 67 [L Ed] 1078 (1923). Such a “particularized”

injury has generally required that a plaintiff must have

suffered an injury distinct from that of the public generally.

Id.

Absent a “particularized” injury, there would be little

that would stand in the way of the judicial branch becom-

ing intertwined in every matter of public debate. If a

taxpayer, for example, opposed the closing of a tax “loop-

hole” by the Legislature, the legislation might be chal-

lenged in court. If a taxpayer opposed an expenditure for a

public building, that, too, might be challenged in court. If a

citizen disagreed with the manner in which agriculture

officials were administering farm programs, or transporta-

tion officials’ highway programs, or social services officials’

welfare programs, those might all be challenged in court. If

a citizen opposed new prison disciplinary policies, that

might be challenged in court.

In each instance, the result would be to have the judicial

branch of government—the least politically accountable of

the branches—deciding public policy, not in response to a

real dispute in which a plaintiff had suffered a distinct and

personal harm, but in response to a lawsuit from a citizen

who had simply not prevailed in the representative pro-

cesses of government. To allow the judiciary to carry out its

responsibilities in this manner is to misperceive the “judi-

cial power,” and to establish the judicial branch as a forum

for giving parties who were unsuccessful in the legislative

and executive processes simply another chance to prevail.

To allow this authority in the judiciary would also be to

establish the judicial branch as first among equals, being

permitted to monitor and supervise the other branches,

108 287 M

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and effectively possessing a generalized commission to

evaluate and second-guess the wisdom of their policies. As

the United States Supreme Court observed in Mellon:

“The administration of any statute...isessentially a

matter of public and not of individual concern.... The

party who invokes the [judicial] power must be able to

show not only that the statute is invalid but that he has

sustained or is immediately in danger of sustaining some

direct injury as the result of its enforcement, and not

merely that he suffers in some indefinite way in common

with the people generally....To[allow standing under a

different understanding] would be not to decide a judicial

controversy, but to assume a position of authority over the

governmental acts of another and co-equal department, an

authority which we plainly do not possess.” [Id. at 487-

489.]

...AstheUnited States Supreme Court observed in

Lujan [supra at 576-577]:

“Vindicating the public interest (including the public

interest in Government observance of the Constitution and

laws) is the function of the Congress and the Chief Execu-

tive.... To permit Congress to convert the undifferenti-

ated public interest in executive officers’ compliance with

the law into an ‘individual right’ vindicable in the courts is

to permit Congress to transfer from the President to the

courts the Chief Executive’s most important constitutional

duty, to ‘take Care that the Laws be faithfully executed,’

Art II, § 3. It would enable the courts, with the permission

of Congress, ‘to assume a position of authority over the

governmental acts of another and co-equal department,’

and to become ‘virtually continuing monitors of the wis-

dom and soundness of Executive action.[’] We have always

rejected that vision of our role....” [Citations omitted;

emphasis in original.]

“We must as judges recall that, as Mr. Justice Holmes

wisely observed, the other branches of Government ‘are

ultimate guardians of the liberties and welfare of the

people in quite as great a degree as the courts.’ ” Flast v

Cohen, 392 US 83, 131; 88 S Ct 1942; 20 L Ed 2d 947 (1968)

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(Harlan, J., dissenting), quoting Missouri, Kansas & Texas

RCovMay, 194 US 267, 270; 24 S Ct 638; 48 L Ed 971

(1904).

In Nat’l Wildlife, supra at 630, our Supreme Court

recognized that because the question of standing is a

fundamental jurisdictional question and “a matter that

may be raised at any time,” the burden that must be

met to establish that standing exists increases over the

course of the proceeding. In Nat’l Wildlife, supra at

630-631, our Supreme Court, quoting Lujan, supra at

561, explained:

“The party invoking federal jurisdiction bears the bur-

den of establishing these elements [i.e., injury in fact,

causation, redressibility]. Since they are not mere pleading

requirements but rather an indispensable part of the

plaintiff’s case, each element must be supported in the

same way as any other matter on which the plaintiff bears

the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of the litigation.

At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on

a motion to dismiss we ‘presume that general allegations

embrace those specific facts that are necessary to support

the claim.’ In response to a summary judgment motion,

however, the plaintiff can no longer rest on such ‘mere

allegations,’ but must ‘set forth’ by affidavit or other

evidence ‘specific facts,’ which for purposes of the sum-

mary judgment motion will be taken to be true. And at the

final stage, those facts (if controverted) must be ‘supported

adequately by the evidence adduced at trial.’ ” [Citations

omitted.]

Thus, a plaintiff must include in the pleadings “general

factual allegations” that injury will result from the defen-

dant’s conduct. If the defendant brings a motion for

summary disposition, the plaintiff must further support

the allegations of injury with documentation, just as he has

to support the other allegations that make up his claim.

Finally, when the matter comes to trial, the plaintiff must

110 287 M

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95 [Jan

sufficiently support his claim, including allegations of

injury, to meet his burden of proof. [Nat’l Wildlife, supra at

630-631.]

In Michigan Ed Ass’n v Superintendent of Pub In-

struction, 272 Mich App 1, 5; 724 NW2d 478 (2006)

(MEA), this Court, recognizing the clarity that our

Supreme Court’s holdings in Lee and Nat’l Wildlife

provided with regard to the question of standing, held

that even when a plaintiff had statutory standing to file

a suit, that plaintiff must also establish that it meets

the constitutionally imposed minimum requirements

for standing set forth in Lee and Lujan.InMEA, the

Michigan Education Association (MEA) filed suit to

challenge the expenditure of funds by Bay Mills Com-

munity College (BMCC) to authorize charter schools.

Id. at 3. The MEA claimed that because these charter

schools were not public schools, the expenditure of

funds to authorize these schools violated the state

constitutional provision prohibiting public funding for

nonpublic schools. Id. at 4. Although this Court con-

cluded that MCL 600.2041(3) and MCR 2.201(B)(4)

conferred standing on the MEA, the MEA still needed

to satisfy the constitutional requirements in Lujan and

Lee in order to establish standing. Id. at 12-13.

The MEA lacked standing in the case because it did

not establish any of the elements of constitutional

standing. This Court explained:

First, plaintiff has neither alleged nor suffered the

required “injury in fact.” Plaintiff presented no evidence

that it suffered an invasion of a legally recognized interest

that is actual or imminent, not hypothetical or conjectural.

Specifically, our review of the record reveals that plaintiff

provides nothing beyond bare assertions that the public

funding of BMCC’s charter schools injures plaintiff’s mem-

bers, and does not identify an injury that is “ ‘concrete and

particularized,’ ” and “ ‘ “actual or imminent.” ’ ” Nat’l

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Wildlife, supra at 628, quoting Lee, supra at 739, quoting

Lujan, supra at 560. Any alleged injury to plaintiff is based

on conjecture and speculation.

Second, plaintiff has provided us nothing more than the

simple assertion that BMCC’s public funding reduces

plaintiff’s members’ wages without any supporting evi-

dence. While we can envision a scenario in the abstract in

which BMCC’s public funding does indirectly or even

directly reduce the wages or wage increases of plaintiff’s

members, it takes more than imagination to establish the

required causation element of standing. Nat’l Wildlife,

supra at 628-629, quoting Lee, supra at 739, quoting Lujan,

supra at 560.

Third, plaintiff has provided no substantive evidence

that the alleged harm could even be “ ‘ “redressed by a

favorable decision.” ’ ” Nat’l Wildlife, supra at 629, quoting

Lee, supra at 739, quoting Lujan, supra at 561. Plaintiff

offers no evidence to show that it is “ ‘ “likely,” ’ ” or even

merely “ ‘ “speculative,” ’ ” that, if all public funds to

BMCC schools are cut off, plaintiff’s members’ salaries will

increase. Nat’l Wildlife, supra at 629, quoting Lee, supra at

739, quoting Lujan at 561. There is absolutely no way to

predict with any degree of certainty how the public dollars

earmarked for BMCC schools would be appropriated if

BMCC funding was discontinued. Plaintiff has provided no

evidence whatsoever that these monies would be directly

funneled into plaintiff’s members’ salaries. Moreover, there

is another possible scenario. Even if plaintiff were to

prevail, the BMCC schools might switch to a different

chartering organization, such as a school district or local

community college, where they would again be eligible for

public funding. Plaintiff has not provided, and we cannot

ascertain, any means of redress by a favorable decision of

this Court. Nat’l Wildlife, supra at 629. [MEA, supra at

5-7.]

In American Family Ass’n of Michigan v Michigan

State Univ Bd of Trustees, 276 Mich App 42; 739 NW2d

908 (2007), the plaintiff, a nonprofit corporation orga-

nized “ ‘to promote the welfare of children through the

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promotion and preservation of the traditional family,’ ”

challenged Michigan State University’s (MSU’s) policy

of providing benefits to same-sex partners, “alleging

that this policy constitutes an illegal expenditure of

state funds to define and recognize same-sex domestic

partnerships in violation of [Const 1963, art 1, § 25] and

state law governing marriage and divorce as set forth in

MCL 551.1 et seq.” Id. at 43-44. The plaintiff claimed

that MSU’s benefits policy advanced an interest con-

trary to the plaintiff’s mission and was at odds with the

policies that the plaintiff sought to promote. Id. at 44.

In addressing whether the plaintiff had standing to

raise this issue, the American Family Court recognized

that our Supreme Court had adopted the Lujan test for

standing. Id. at 46. It also addressed our Supreme

Court’s holdings in Lee and Nat’l Wildlife, observing

that in these cases our Supreme Court had recognized

that failure to ensure that a party had standing to

decide a particular issue would alter the function of

judicial review to the point where the constitutional

separation of powers would be threatened. Id. at 49.

The Court, id. at 51-53, then concluded:

Here, as in MEA, plaintiff alleged that, as a Michigan

nonprofit corporation organized for civic purposes, it has

standing under MCL 600.2041 and MCR 2.201(B) to insti-

tute the instant action. Plaintiff argues that our Supreme

Court determined in House Speaker that the statutory

grant of standing set forth in MCL 600.2041 and MCR

2.201(B)(4) is constitutional; therefore, it need not meet

any additional requirements to establish standing. How-

ever, as discussed earlier, Lee expressly stated that the

Lujan test for standing was to “be seen as supplementing

the holding in House Speaker, as well as [the] Court’s

earlier standing jurisprudence....” Lee, supra at 740

(emphasis added). And in Nat’l Wildlife, supra at 628-629,

our Supreme Court reiterated and reaffirmed that plain-

tiffs must allege an actual or imminent, concrete and

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particularized injury to establish standing, irrespective of

any statutory authorization for bringing suit. Thus, as this

Court explained in MEA, our Supreme Court has made

clear that the minimum requirements set forth in Lee and

Lujan are an absolute prerequisite to establishing standing

and that those requirements supplement—that is, aug-

ment or add to—the requirements set forth in House

Speaker. Therefore, we conclude that the trial court prop-

erly determined that plaintiff was required to establish

that it had suffered an actual or imminent, concrete and

particularized invasion of a legally protected interest, dis-

tinct from that of the public generally, as a result of

defendant’s benefits policy in order to have standing to

institute the instant action.

Plaintiff asserts that, even under such a test, it has

alleged a sufficient injury by asserting that defendant’s

recognition of same-sex domestic partnerships for benefits

purposes conflicts with plaintiff’s stated interest in and

purpose of promoting and preserving the traditional family,

marriage, and the welfare of children. However, plaintiff

offers only a bare assertion that it is being injured by

defendant’s benefits policy. Plaintiff did not present any

evidence to establish that it or its members are directly

affected by defendant’s benefits policy in an individualized

and particularized manner or that defendant’s benefits

policy detrimentally affects plaintiff’s [“ ‘]substantial in-

terest... in a manner different from the citizenry at

large.’ ” Lee, supra at 738-739, quoting House Speaker,

supra at 554. Indeed, plaintiff’s only alleged injury is that

defendant’s provision of benefits to same-sex domestic

partners is “at odds with that which [plaintiff] seeks to

promote.” Plaintiff essentially complains that defendant’s

benefits policy is an affront to the values that plaintiff and

its members espouse and promote.

Accordingly, plaintiff

has not established that it suffered a concrete and particu-

larized, actual or imminent injury distinct from that of the

citizenry at large, as required by House Speaker, Lujan,

and Lee. Thus, plaintiff did not meet its burden of estab-

lishing standing, irrespective of whether it satisfied MCL

600.2041 and MCR 2.201(B). MEA, supra.

114 287 M

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95 [Jan

_____________________________________________________

In contrast, perhaps, to students who might assert that

their costs of attendance are increased by defendant’s

expenditure of funds to provide benefits to same-sex do-

mestic partners, or to married recipients of those benefits

who might assert that their cost of benefits is increased by

that expenditure, plaintiff’s asserted injury is no different

from that which could be asserted by persons, groups, or

entities whose values or beliefs lead them to oppose afford-

ing any recognition or status to same-sex relationships.

The standing of students or benefit recipients such as we

describe here in contrast to plaintiff is not, of course, at

issue, and we express no opinion regarding their standing.

_____________________________________________________

Initially, we note that we do not question the validity

of CRAM’s standing to bring this suit on behalf of its

members. “Nonprofit organizations... have standing

to bring suit in the interest of their members where

such members would have standing as individual plain-

tiffs.” Nat’l Wildlife, supra at 629. CRAM has standing

if it alleges that its members (the county road commis-

sions of the state of Michigan) suffered either an actual

injury or an imminent injury. Id. Instead, we hold that

CRAM’s members, the county roads commissions and

public works departments, lack standing.

First, plaintiffs have failed to establish that they

suffered an “injury in fact” because they have not

indicated that they suffered a particularized injury. In

their complaint, plaintiffs claim that “[t]he Chippewa

County Road Commission and all 83 Michigan counties

have received reduced distributions from restricted

transportation funds because of the improper transfers

of restricted transportation funds as alleged.” Although

the parties extensively debated the appropriateness of

the contested transfers of funds before the trial court,

plaintiffs provided little evidence concerning the dam-

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ages that the road commissions suffered as a result of

the reduction in funds. In their brief on appeal, plain-

tiffs respond to defendants’ allegation that they did not

suffer an injury that is “distinct from the public at

large” by countering that they, not the public at large,

have a statutory duty to maintain and operate the

county road system and that they, not the public at

large, were injured when they lost their share of the

MTF funding to which they were entitled.

However, the injury plaintiffs allege—that they

received reduced distributions from the MTF and

related funds—does not constitute an injury that is

distinct from that suffered by the public at large.

First, our Supreme Court has long held that the

construction and maintenance of local roads is not a

local concern, but a matter of interest for the state at

large. Moreton v Secretary of State, 240 Mich 584, 588;

216 NW 450 (1927). Further, plaintiffs’ claimed in-

jury is not distinct from that suffered by the public at

large. The county road commissions are public enti-

ties created for a public purpose, namely, to con-

struct, maintain, and operate designated roads within

a particular county for the benefit of the public. See

MCL 224.1 et seq. By receiving reduced distributions,

the county road commissions “suffered” the same

injury as that suffered by the public. With less money,

the county road commissions could not engage in as

many construction and maintenance projects, result-

ing in a direct injury to the public in the form of bad

roads. Although a lack of funding might hinder the

county road commissions’ ability to fulfill their statu-

tory duty to maintain and operate the county road

system, it is the public that suffers as a result.

Plaintiffs fail to establish that they suffered an injury

distinct from the general public and, accordingly,

116 287 M

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95 [Jan

plaintiffs have failed to establish a particularized

injury necessary to establish an injury in fact.

Further, plaintiffs have failed to establish that a

causal connection exists between the injury and the

conduct complained of, namely, a reduction in the

distribution of MTF revenues to the county road

commissions. Plaintiffs want this Court to assume

that a reduced distribution of MTF funds to the

county road commissions must have resulted in in-

jury. This could be a reasonable assumption to make.

However, because plaintiffs bear the burden of estab-

lishing standing, Lee, supra, it is reasonable to expect

plaintiffs to provide more than a mere assumption of

injury resulting from the alleged wrong to establish

an element of constitutional standing. Assuming that

plaintiffs received a lower allocation of MTF funds

than expected, they still do not indicate how and to

what extent this affected the county road commis-

sions’ budgets. For example, a county might have

appropriated money to the county road commission to

compensate for decreased MTF funding, perhaps by

taking the money from existing funds or by passing a

local tax levy for roads. Although such taxation or

reappropriation of funds might hurt the county as a

whole, a county road commission could not claim that

it was harmed by the reduction in MTF funds if it

received compensation for its loss in MTF funding

from another source. Similarly, plaintiffs fail to ex-

plain how a decrease in money distributed into the

other named funds resulted in a direct injury to the

county road commissions. Consequently, plaintiffs

have failed to satisfy the constitutional test set forth

in Lee and Lujan and have not established standing in

this case.

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In addition, we note that even if plaintiffs’ lack of

standing were not at issue, this cause of action would

still be barred by the doctrine of sovereign immunity.

The question whether an entity has immunity is one

of law, which we review de novo. Ballard v Ypsilanti

Twp, 457 Mich 564, 567; 577 NW2d 890 (1998).

Michigan courts have long recognized that “[t]he

State, as sovereign, is immune from suit save as it

consents to be sued, and any relinquishment of sover-

eign immunity must be strictly interpreted.” Manion v

State Hwy Comm’r, 303 Mich 1, 19; 5 NW2d 527 (1942).

“Sovereign immunity exists in Michigan because the

state created the courts and so is not subject to them.”

Pohutski v City of Allen Park, 465 Mich 675, 681; 641

NW2d 219 (2002). See also Sanilac Co Bd of Supervi-

sors v Auditor General, 68 Mich 659, 665; 36 NW 794

(1888) (“The state is not liable to suit except as it

authorizes a suit, and this authority can be revoked at

pleasure. This is such elementary doctrine that it only

needs statement.”). Although the terms “sovereign im-

munity” and “governmental immunity” have been used

interchangeably, their meanings are different. Ballard,

supra at 567. “Sovereign immunity refers to the immu-

nity of the state from suit and from liability, while

governmental immunity refers to the similar immuni-

ties enjoyed by the state’s political subdivisions.” Id. at

567-568. By being immune from suit, the state is

immune from being “hailed into one of its courts

without its consent.” Id. at 568 n 1. The Pohutski Court

noted:

“Sovereign immunity is a specific term limited in its

application to the State and to the departments, commis-

sions, boards, institutions, and instrumentalities of the

State. The reason is the State is the only sovereignty in

our system of government, except as the States delegated

part of their implicit sovereignty to the Federal govern-

ment.” [Pohutski, supra at 682, quoting Myers v Genesee

118 287 M

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95 [Jan

Co Auditor, 375 Mich 1, 6; 133 NW2d 190 (1965) (opinion

by O’H

ARA

, J.) (emphasis in original).]

[7]

All defendants in this cause of action are state agents

and agencies. Accordingly, they are subject to sovereign

immunity.

Michigan courts have also recognized that immunity

from suit can only be waived by an act of the Legisla-

ture, Ballard, supra at 568, or through a constitutional

provision, see Durant v Michigan, 456 Mich 175, 205 n

31; 566 NW2d 272 (1997). Because governmental im-

munity is a characteristic of government, a plaintiff

must plead its case in avoidance of governmental im-

munity. Mack v Detroit, 467 Mich 186, 198; 649 NW2d

47 (2002).

Essentially, the state can only waive its immunity

and, consequently, consent to be sued through an act of

the Legislature or through the constitution. We have

been unable to identify a statutory or constitutional

provision under which the state has “consented” to this

type of suit. The governmental tort liability act states:

Except as otherwise provided in this act, a governmental

agency is immune from tort liability if the governmental

agency is engaged in the exercise or discharge of a govern-

mental function. Except as otherwise provided in this act,

this act does not modify or restrict the immunity of the

In contrast, in Myers, Justice O’H

ARA

explained how “sovereign immu-

nity” had morphed into the broader concept of “governmental immunity,”

stating:

“Over the years, by judicial construction, this ‘sovereign’

immunity has been transmogrified into ‘governmental’ immunity

and made applicable to the ‘inferior’ divisions of government, i.e.,

townships, school districts, villages, cities, and counties, but with

an important distinction. These subdivisions of government en-

joyed the immunity only when engaged in ‘governmental’ as

distinguished from ‘proprietary’ functions.” [Pohutski, supra at

682, quoting Myers, supra at 8-9.]

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state from tort liability as it existed before July 1, 1965,

which immunity is affirmed. [MCL 691.1407(1).]

However, this action does not sound in tort, because

this is not an action for which plaintiffs seek, or can

even directly acquire, relief. This Court has recognized

that “[a] ‘tort’ is broadly defined as ‘[a] civil wrong for

which a remedy may be obtained’....” Tate v Grand

Rapids, 256 Mich App 656, 660; 671 NW2d 84 (2003),

quoting Black’s Law Dictionary (7th ed). Plaintiffs

claim that they are seeking a return of funds to the

MTF and the TEDF, as well as injunctive relief that

would govern future attempts to “unconstitutionally”

transfer money away from these funds, but the wrongs

that they assert do not provide them access to a remedy

that they may directly obtain. Regardless, even if plain-

tiffs’ cause of action did sound in tort, defendants’

complained-of actions (implementing budgetary

changes) constitute the discharge of a governmental

function and, further, our Supreme Court has indicated

that the governmental tort liability act was not de-

signed to undermine “ ‘ “the apparent assumption that

the state and its agencies enjoyed a total sovereign

immunity from tort liability....”’”Pohutski, supra at

687, quoting Li v Feldt (After Remand), 434 Mich 584,

600-601; 456 NW2d 55 (1990) (G

RIFFIN

, J., concurring in

part and dissenting in part) (citations omitted).

Certain other constitutional and statutory provisions

also waive the state’s sovereign immunity and permit

plaintiffs to bring specific causes of action against the

states. See, e.g., Durant, supra at 205 n 31 (noting that

the Headlee Amendment included a waiver of sovereign

immunity from taxpayer suits to enforce the amend-

ment’s provisions); Burdette v Michigan, 166 Mich App

406, 408; 421 NW2d 185 (1988) (“Article I, § 17 of the

1963 Michigan Constitution provides that the state may

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95 [Jan

not deprive a person of property without due process of

law. Constitutional due process guarantees prohibit the

state from taking property for nonpayment of taxes

without proper notice and opportunity for a hearing.”).

However, no constitutional or statutory provisions

waive the state’s sovereign immunity from suits con-

cerning these types of budgetary appropriations.

As a general rule, “ ‘governmental immunity is not

available in a state court action where it is alleged that

the state violated a right conferred by the state consti-

tution.’ ” Jones v Powell, 227 Mich App 662, 673; 577

NW2d 130 (1998), aff’d 462 Mich 329 (2000), quoting

Marlin v Detroit, 177 Mich App 108, 114; 441 NW2d 45

(1989). See also Smith v Dep’t of Pub Health, 428 Mich

540, 544; 410 NW2d 749 (1987) (“Where it is alleged

that the state, by virtue of custom or policy, has violated

a right conferred by the Michigan Constitution, govern-

mental immunity is not available in a state court

action.”). However, we do not believe that a constitu-

tional mandate to use transportation-related taxes and

fees for transportation-related purposes necessarily

constitutes a “right conferred by the state constitu-

tion,” especially when compared to the rights whose

violation by the state was at issue in the cases in which

this provision was applied. See Duncan v Michigan, 284

Mich App 246; 774 NW2d 89 (2009) (concerning the

right to counsel); Hinojosa v Dep’t of Natural Re-

sources, 263 Mich App 537; 688 NW2d 550 (2004)

(concerning an unconstitutional taking of property);

Jones, supra (concerning tort claims arising from an

entry into a home without a warrant).

Further, plaintiffs, who are local governmental enti-

ties, not individuals, do not even have the rights that

they allege were violated. A right must be “conferred”

on an entity, and we are not aware of any circumstance

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under which a constitutional or statutory “right” can be

conferred upon a governmental body, as opposed to an

individual. In fact, the Michigan Constitution was de-

signed and created for the benefit of the people of this

state, not for the benefit of a municipality or a county

road commission. See Const 1963, art 1, § 1 (“All

political power is inherent in the people. Government is

instituted for their equal benefit, security and protec-

tion.”). Therefore, as we explained earlier in this opin-

ion, even if the state’s actions did constitute a violation

of a right conferred by the constitution, it is the

individual taxpayers of this state, not local governmen-

tal entities, who would have standing to challenge the

violation of a right conferred by the state constitution.

Similarly, it appears that the state did not afford

county road commissions and similar entities consent to

file suit against it with regard to this type of claim. In

Oakland Co Bd of Co Rd Comm’rs v Michigan Prop &

Cas Guaranty Ass’n, 456 Mich 590; 575 NW2d 751

(1998), our Supreme Court, in the context of discussing

whether a county road commission could raise an equal

protection claim against the state, explained:

[A]s a creation of the Legislature, the road commission

cannot assert an equal protection challenge against its

creator, the state. The county road law provides for the

creation of a county road commission and defines the

powers and duties of the commission. See MCL 224.1 et

seq..... A county road commission “draws its legal life

from the county road law and, as a creature of that

legislation, the commission has no power save that which is

legislatively conferred.” Arrowhead Development Co v Liv-

ingston Co Rd Comm, 413 Mich 505, 512; 322 NW2d 702

(1982). [Id. at 608.]

Although plaintiffs claim that Oakland Co only pre-

vents a county road commission from bringing an equal

protection claim against the state, the rationale pro-

122 287 M

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95 [Jan

vided in Oakland Co is equally applicable to a determi-

nation that county road commissions, as creatures of

statute, cannot bring a constitutional claim against the

state.

Plaintiffs also claim that immunity from suit does

not exist in this case because, if it did exist, the

legislative and executive branches would have un-

checked power to transfer any and all revenue consti-

tutionally dedicated to the MTF to any state fund for

any purpose, rendering Const 1963, art 9, § 9 meaning-

less and undermining the intent of the people of this

state. This argument incorrectly presupposes that only

the judiciary has the power to prevent the legislative

and executive branches from improperly appropriating

funds dedicated in the constitution for a particular

purpose. Plaintiffs forget that the people of this state

have the power of the vote, and they can use the ballot

box to remove from office elected members of the

legislative and executive branches whose actions are

contrary to the will of the people. The desire of the

public to have properly maintained roads is perhaps the

most powerful incentive for legislators and executive

branch elected officials to not dip too much into the

MTF to fund other programs, because if the public is

dissatisfied, these elected officials are in danger of

losing their jobs. We vacate the trial court’s order and

remand for dismissal of this cause of action.

Vacated and remanded for dismissal.

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HADDEN v McDERMITT APARTMENTS, LLC

Docket No. 286474. Submitted September 1, 2009, at Lansing. Decided

January 12, 2010, at 9:05 a.m.

Kathryn Hadden brought an action in the Genesee Circuit Court,

Geoffrey L. Neithercut, J., against McDermitt Apartments, LLC,

seeking damages for injuries sustained when plaintiff, a tenant living

on the second floor of defendant’s apartment building, slipped and

fell on black ice when using an outdoor stairway attached to the

building. The court denied defendant’s motion for summary disposi-

tion with regard to plaintiff’s common-law premises liability claim

and claims that defendant violated statutory duties to keep the

stairway in reasonable repair, under MCL 554.139(1)(b), and to keep

the stairway fit for its intended use, under MCL 554.139(1)(a).

Defendant moved for reconsideration, arguing that application of the

decision in Allison v AEW Capital Mgt, LLP, 481 Mich 419 (2008),

issued the same day that the trial court denied the motion for

summary disposition, would result in a different outcome on recon-

sideration. The trial court granted the motion, in part, and eventually

held that, pursuant to Allison, defendant had no statutory duty to

keep the stairway in reasonable repair under MCL 554.139(1)(b). The

trial court further held that, under MCL 554.139(1)(a), defendant

had a duty to keep the stairway fit for its intended use. The trial court

also found the conclusion reached in Allison—that one to two inches

of snow did not render a parking lot unfit for its intended use—

distinguishable, noting that the facts in this case included black ice,

not just snow, and the intended use of the stairway of easy ingress to

and egress from the upstairs apartments was different from the use

of the parking lot in Allison. Finally, the trial court held that plaintiff

waived her arguments against defendant’s open and obvious danger

defense because she cited no caselaw supporting her position. Defen-

dant appealed by leave granted with regard to the issue whether the

trial court’s decision to deny summary disposition regarding MCL

554.139(1)(a) was erroneous given its finding that there is a material

distinction between the facts of this case and those in Allison.

The Court of Appeals held:

1. The primary purpose or intended use of a stairway is to

provide pedestrian access to different levels of a building or

124 287 M

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124 [Jan

structure. MCL 554.139(1)(a) does not require perfect mainte-

nance of a stairway. A stairway need not be in ideal condition, nor

in the most accessible condition possible, but it must provide

tenants reasonable access to different building levels.

2. The trial court properly determined that plaintiff produced

enough evidence to create a material question of fact whether the

stairway was fit for its intended use at the time of plaintiff’s fall.

Reasonable minds could conclude that the presence of black ice on

a darkly lit, unsalted stairway—possibly caused or aggravated by

overflowing ice water from overhead gutters in the presence of

freezing rain—posed a hidden danger that denied reasonable

access to different levels of the building and rendered the stairway

unfit for its intended use. The trial court properly denied summary

disposition with regard to whether the stairway was fit for its

intended use.

3. This case is factually distinguishable from Allison.

Affirmed.

ETER

, J., dissenting, stated that Allison controls the outcome

of this case and mandates that defendant should have been

granted summary disposition. This case is not materially distin-

guishable from Allison. First, the principles from Allison apply not

just to parking lots but to all common areas on leased premises,

including the stairway at issue. Second, plaintiff’s assertion of

unfitness was based on alleged facts similar to those set forth in

Allison, i.e., she relied solely on the alleged facts that the stairs

were icy and that she fell. Finally, like the parking lot in Allison,

the stairway here was suitable for its intended use. Plaintiff did

not show that the condition of the stairway precluded her ability to

use the stairway to access different levels of the building. The

stairway was not rendered unfit for its purpose simply because of

the presence of some amount of ice that required a careful

navigation of the steps. The order of the trial court should be

reversed and the case should be remanded to the trial court for the

entry of a judgment in favor of defendant.

ANDLORD AND

ENANT —

OMMON

REAS —

TAIRWAYS —

TATUTORY

UTIES —

LACK

A lessor of leased residential property has a statutory duty to keep

all common areas fit for the use intended by the parties to the

lease; the primary purpose or intended use of a common area

stairway is to provide pedestrian access to different levels of the

building or structure; the statutory duty does not require perfect

maintenance of such a stairway and the stairway need not be in an

ideal condition, nor in the most accessible condition possible, but it

2010] H

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125

must provide reasonable access to different building levels; the

presence of black ice on a darkly lit, unsalted stairway might pose

a hidden danger that denies tenants reasonable access to different

levels of a building and renders the stairway unfit for its intended

use (MCL 554.139[1][a]).

Mindell, Malin, Kutinsky, Stone & Blatnikoff (by

Randall I. Stone) for plaintiff.

Feuer & Kozerski, PC (by Scott L. Feuer), for defen-

dant.

Before: M

URPHY

,P.J., and M

ETER

and B

ECKERING

,JJ.

ECKERING

, J. Defendant appeals by leave granted the

trial court’s order denying its motion for summary

disposition with regard to plaintiff’s claim that defen-

dant breached its statutory duty under MCL

554.139(1)(a). We affirm. This appeal has been decided

without oral argument pursuant to MCR 7.214(E).

Plaintiff was a tenant in an upstairs apartment of

defendant’s building. After twice calling defendant to

complain about the presence of snow and ice on an

outdoor stairway attached to the building, plaintiff

slipped and fell on black ice when using the stairway.

She fractured her left hip.

Plaintiff sued defendant for breach of its common-

law duty to use reasonable care as a premises owner and

also its statutory duty as a landlord to keep the pre-

mises and common areas fit for their intended use and

the premises in reasonable repair under MCL

554.139(1)(a) and (b). Defendant moved for summary

disposition under MCR 2.116(C)(10), arguing that there

was no genuine issue of material fact that the hazard

was open and obvious, so it could not be held liable

under a common-law premises liability theory. Defen-

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dant also argued that it was not liable under MCL

554.139(1) because its statutory duty did not extend to

snow and ice removal.

Initially, the trial court completely denied defen-

dant’s motion, but on the same day the trial court

entered its order, our Supreme Court issued its decision

in Allison v AEW Capital Mgt, LLP, 481 Mich 419; 751

NW2d 8 (2008). Defendant moved for reconsideration,

arguing that applying Allison would change the out-

come of the trial court’s decision.

The trial court granted in part defendant’s motion for

reconsideration. It concluded, pursuant to the Court’s

holding in Allison, that defendant had no statutory duty

to keep the stairway in reasonable repair under MCL

554.139(1)(b). However, under MCL 554.139(1)(a), defen-

dant had a duty to keep the stairway fit for its intended

use. The trial court found the conclusion reached in

Allison—that one to two inches of snow did not render a

parking lot unfit for its intended use—distinguishable.

The facts here included black ice, not just snow, and the

intended use of easy ingress to and egress from the

upstairs apartments was different from that of the park-

ing lot in Allison. The trial court noted that, by its own

terms, the statute is to be “liberally construed,” quoting

MCL 554.139(3). Finally, the trial court concluded that

plaintiff had waived her arguments against defendant’s

“open and obvious danger” defense because she cited no

caselaw supporting her position.

In this Court, the only issue properly presented is

whether the trial court’s decision regarding MCL

554.139(1)(a) was erroneous given its finding that there is

a material distinction between the facts here and those in

Allison.

We review de novo a trial court’s decision to grant or

deny a motion for summary disposition. Spiek v Dep’t of

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Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).

Although we view substantively admissible evidence

submitted at the time of the motion in the light most

favorable to the party opposing the motion, the non-

moving party must come forward with at least some

evidentiary proof, some statement of specific fact upon

which to base his or her case. Maiden v Rozwood, 461

Mich 109, 119-121; 597 NW2d 817 (1999); Skinner v

Square D Co, 445 Mich 153, 161-162; 516 NW2d 475

(1994).

“MCL 554.139 provides a specific protection to les-

sees and licensees of residential property in addition to

any protection provided by the common law.” Allison,

481 Mich at 425 (emphasis in original). MCL 554.139

provides, in relevant part:

(1) In every lease or license of residential premises, the

lessor or licensor covenants:

(a) That the premises and all common areas are fit for

the use intended by the parties.

***

(3) The provisions of this section shall be liberally

construed....

For common areas, “the lessor effectively has a contrac-

tual duty to keep the [area] ‘fit for the use intended by

the parties.’ ” Allison, 481 Mich at 429, quoting MCL

554.139(1)(a).

Our Supreme Court in Allison made it clear that an

accumulation of snow and ice could implicate a land-

lord’s duty to keep the premises and all common areas

fit for the use intended. Allison, 481 Mich at 438.

Allison also clarified that the “open and obvious danger” doctrine

does not obviate a landlord’s statutory duty under MCL 554.139. Allison,

481 Mich at 425.

128 287 M

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Allison, at issue was whether “one to two inches of

accumulated snow” in an apartment complex parking

lot made the parking lot unfit for its intended use. Id.at

423. While the majority of justices agreed that the

presence of snow and ice could make a parking lot unfit

for its intended use, the Supreme Court held that the

facts in Allison did not establish that tenants were

unable to use the parking lot for its intended purpose:

A parking lot is constructed for the primary purpose of

storing vehicles on the lot. “Fit” is defined as “adapted or

suited; appropriate[.]” Random House Webster’s College

Dictionary (1997). Therefore, a lessor has a duty to keep a

parking lot adapted or suited for the parking of vehicles. A

parking lot is generally considered suitable for the parking

of vehicles as long as the tenants are able to park their

vehicles in the lot and have reasonable access to their

vehicles. A lessor’s obligation under MCL 554.139(1)(a)

with regard to the accumulation of snow and ice concomi-

tantly would commonly be to ensure that the entrance to,

and the exit from, the lot is clear, that vehicles can access

parking spaces, and that tenants have reasonable access to

their parked vehicles. Fulfilling this obligation would allow

the lot to be used as the parties intended it to be used.

In this case, in construing the meaning of these terms in

the contract, neither of the parties has indicated that the

intended use of the parking lot was anything other than

basic parking and reasonable access to such parking. Plain-

tiff’s allegation of unfitness was supported only by two

facts: that the lot was covered with one to two inches of

snow and that plaintiff fell. Under the facts presented in

this record, we believe that there could not be reasonable

differences of opinion regarding the fact that tenants were

able to enter and exit the parking lot, to park their vehicles

therein, and to access those vehicles. Accordingly, plaintiff

has not established that tenants were unable to use the

parking lot for its intended purpose, and his claim fails as

a matter of law.

2010] H

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While a lessor may have some duty under MCL

554.139(1)(a) with regard to the accumulation of snow and

ice in a parking lot, it would be triggered only under much

more exigent circumstances than those obtaining in this

case. The statute does not require a lessor to maintain a lot

in an ideal condition or in the most accessible condition

possible, but merely requires the lessor to maintain it in a

condition that renders it fit for use as a parking lot. Mere

inconvenience of access, or the need to remove snow and ice

from parked cars, will not defeat the characterization of a

lot as being fit for its intended purposes. [Id. at 429-430.]

While the Allison Court specifically referenced park-

ing lots, the principles set forth apply to all common

areas, including stairways. The primary purpose or

intended use of a stairway is to provide pedestrian

access to different levels of a building or structure. As

with a parking lot, MCL 554.139(1)(a) does not require

perfect maintenance of a stairway. The stairway need

not be in an ideal condition, nor in the most accessible

condition possible, but, rather, must provide tenants

“reasonable access” to different building levels. See

Allison, 481 Mich at 430. We must ascertain whether

there could be reasonable differences of opinion regard-

ing whether the stairway was fit for its intended use of

providing tenants with reasonable access under the

circumstances presented at the time of plaintiff’s fall.

Plaintiff testified that she lived on the second floor of

defendant’s apartment building. In order to access her

mailbox on the first floor, plaintiff used the stairway in

question, which consisted of approximately 12 open

steps located outside the building but covered by a roof.

Plaintiff testified that the day before the fall, she left

her apartment to check her mail and noted the presence

of snow on all the stairs of the stairway. Although she

was able to use the stairway without incident, plaintiff

called defendant and complained to “Lori” about the

130 287 M

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presence of snow and ice on the stairway.

She was told

that “Scott” would take care of it when he had the time.

Plaintiff testified that on the day of the fall, before

she had left her apartment, she again called and noti-

fied defendant about the presence of snow and ice on

the stairway. Plaintiff produced weather data indicating

that preceding her fall, temperatures were at or below

freezing, and the area experienced episodes of light

freezing rain and at one point “ice pellets.” At approxi-

mately 1:00 p.m. on December 1, 2006, plaintiff left her

apartment to check her mail. She noticed “lots of snow”

that was “fresh,” and that there was “more than a

couple of inches” on the second floor as she walked

toward the stairway. Plaintiff descended the stairway

and checked her mailbox. Plaintiff’s testimony was

conflicting on the issue whether she noticed snow or ice

on the stairway before her fall. On her way back up the

stairway, plaintiff used the right side of the stairway so

that she could use the handrail. As she reached the

second step, plaintiff slipped and fell on ice, fracturing

her left hip. She testified that she did not see the ice

before her fall because it was black ice and the stairway

was too dark. As she fell, however, plaintiff noticed that

the gutters overhead were overflowing with water and

icicles had formed. Plaintiff testified that there was no

salt on the stairway at the time of her fall.

Defendant concedes that for purposes of this appeal,

plaintiff’s testimony must be accepted as true and the

evidence presented must be viewed in the light most

favorable to plaintiff. We agree with the trial court that

plaintiff has produced enough evidence to create a

While it appears plaintiff contradicted herself at times throughout

her deposition, neither party produced the entirety of plaintiff’s deposi-

tion; therefore, the facts cited are gleaned from the available testimony

presented to this Court.

2010] H

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material question of fact whether the stairway was fit

for its intended use at the time of plaintiff’s fall. As

stated earlier, the primary purpose of a stairway is to

provide pedestrians reasonable access to different levels

of a building or structure. Reasonable minds could

conclude that the presence of black ice on a darkly lit,

unsalted stairway—possibly caused or aggravated by

overflowing ice water from overhead gutters in the

presence of freezing rain—posed a hidden danger that

denied tenants reasonable access to different levels of

the apartment building and rendered the stairway unfit

for its intended use.

This case is factually distinguishable from Allison

because black ice on a stairway presents more than the

“[m]ere inconvenience” posed by “one to two inches of

snow” in a parking lot. See Allison, 481 Mich at 423,

430. Furthermore, as the Court stated in Allison, the

primary use of a parking lot is to park cars. Id. at 429.

Although the Court recognized that tenants must have

reasonable access to their vehicles in a parking lot, i.e.,

they must be able to walk to the vehicles, id., tenants do

not use a parking lot for its intended use by merely

walking in the lot. Walking in a parking lot is secondary

to the parking lot’s primary use. In contrast, a tenant

uses a stairway for its intended use solely by walking up

and down it. Thus, the primary purpose of a stairway is

for walking. Indeed, the primary purposes and, there-

fore, intended uses of a parking lot and a stairway are

two different things.

Therefore, under all the circumstances presented

here, the snow- and ice-covered stairway may not have

been fit for its intended use at the time of plaintiff’s fall.

We agree with the trial court that this issue presents a

material question of fact for the jury.

Affirmed.

132 287 M

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URPHY

,P.J., concurred.

ETER

,J.(dissenting). I conclude that Allison v AEW

Capital Mgt, LLP, 481 Mich 419; 751 NW2d 8 (2008),

controls the outcome in this case and mandates that

defendant be granted summary disposition. Accord-

ingly, I respectfully dissent.

As noted by the majority, the only issue in this case

involves the application of MCL 554.139(1)(a), which

requires a landlord to ensure that common areas on

leased premises are “fit for the use intended by the

parties.”

The Supreme Court in Allison, 481 Mich at 438,

indicated that an accumulation of snow and ice can, in

certain circumstances, implicate a landlord’s duty to

keep common areas fit for the use intended. However,

the circumstances in Allison were not so egregious as to

implicate the duty. Id. at 430. The Court stated:

Plaintiff’s allegation of unfitness was supported only by

two facts: that the lot was covered with one to two inches

of snow and that plaintiff fell. Under the facts presented in

this record, we believe that there could not be reasonable

differences of opinion regarding the fact that tenants were

able to enter and exit the parking lot, to park their vehicles

therein, and to access those vehicles. Accordingly, plaintiff

has not established that tenants were unable to use the

parking lot for its intended purpose, and his claim fails as

a matter of law.

While a lessor may have some duty under MCL

554.139(1)(a) with regard to the accumulation of snow and

ice in a parking lot, it would be triggered only under much

more exigent circumstances than those obtaining in this

case. The statute does not require a lessor to maintain a lot

in an ideal condition or in the most accessible condition

possible, but merely requires the lessor to maintain it in a

condition that renders it fit for use as a parking lot. Mere

inconvenience of access, or the need to remove snow and ice

2010] H

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ISSENTING

PINION BY

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,J.

from parked cars, will not defeat the characterization of a

lot as being fit for its intended purposes. [Allison, 481 Mich

at 430.]

I simply cannot find this case materially distinguish-

able from Allison. First, as noted by the majority, the

principles from Allison apply not just to parking lots

but to all common areas on leased premises, including

the stairway at issue here. Second, plaintiff’s assertion

of unfitness was based on alleged facts similar to those

set forth in Allison, i.e., she relied solely on the alleged

facts that the stairs were icy and that she fell.

Finally, like the parking lot in Allison, the stairway

here was suitable for its intended use. The Allison

Court stated that “[a] parking lot is generally consid-

ered suitable for the parking of vehicles as long as the

tenants are able to park their vehicles in the lot and

have reasonable access to their vehicles.” Id. at 429.

The Court added:

A lessor’s obligation under MCL 554.139(1)(a) with

regard to the accumulation of snow and ice concomitantly

would commonly be to ensure that the entrance to, and the

exit from, the lot is clear, that vehicles can access parking

spaces, and that tenants have reasonable access to their

parked vehicles. Fulfilling this obligation would allow the

lot to be used as the parties intended it to be used. [Allison,

481 Mich at 429.]

The Court ultimately concluded:

We recognize that tenants must walk across a parking

lot in order to access their vehicles. However, plaintiff did

not show that the condition of the parking lot in this case

precluded access to his vehicle. The Court of Appeals erred

in concluding that, under the facts presented, the parking

lot in this case was unfit simply because it was covered in

snow and ice. [Id. at 430.]

134 287 M

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124 [Jan

ISSENTING

PINION BY

ETER

,J.

Similarly, plaintiff in this case did not show that the

condition of the stairway precluded her ability to use

the stairway to access different levels of the building.

Unlike the plaintiff in Allison, who fell on his first

encounter with the parking lot, plaintiff in this case had

already successfully negotiated the steps, not just one

other time but three times, having encountered the

same icy condition the previous day. The stairway was

not rendered unfit for its purpose simply because of the

presence of some amount of ice that required a careful

navigation of the steps.

In my opinion, the present case is not materially

distinguishable from Allison and I therefore conclude

that defendant was entitled to summary disposition.

I would reverse and remand this case for entry of

judgment in favor of defendant.

I reject the majority’s indication that Allison may somehow be

distinguishable because “[w]alking in a parking lot is secondary to the

parking lot’s primary use.” A person must be able to reasonably access

his or her vehicle in order for a parking lot to be serviceable. The Allison

Court explicitly recognized this. Allison, 481 Mich at 429. Finally, I note

that this appeal solely involves the application of MCL 554.139(1)(a) and

I therefore do not reach the question whether the staircase was “unrea-

sonably dangerous,” an inquiry related to a common-law premises

liability claim. See, e.g., Royce v Chatwell Club Apartments, 276 Mich App

389, 391; 740 NW2d 547 (2007).

2010] H

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ISSENTING

PINION BY

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,J.

PARIS MEADOWS, LLC v CITY OF KENTWOOD

Docket No. 286978. Submitted December 2, 2009, at Grand Rapids.

Decided January 12, 2010, at 9:10 a.m.

Paris Meadows, L.L.C., the developer of a condominium project in

the city of Kentwood, petitioned for review of the city’s assessment

of property taxes on certain property designated as a “convertible

area” on the subdivision plan and defined in the master deed as

part of the “general common elements” of the condominium

project, asserting that the property was not subject to taxation

separate from the condominium units. The Kentwood Board of

Review denied the appeal and affirmed the assessment. Paris

Meadows appealed the decision to the small claims division of the

Tax Tribunal, which granted the city’s motion for summary

disposition, noting that, because the master deed provided that

Paris Meadows reserved the right to contract, convert, or expand

the condominium project (including the disputed area) for six

years after the master deed was filed, the disputed property was

not a true common element until the six years ran. Paris Meadows

appealed.

The Court of Appeals held:

1. The Tax Tribunal erred by concluding that Paris Meadows’

reservation of rights to develop the disputed property rendered the

property not a common element, and thus separately taxable.

According to the language of the master deed and the Condo-

minium Act, MCL 559.101 et seq., the disputed property was a

common element, in which the coowners held an undivided,

inseparable interest, and the fact that Paris Meadows retained the

right to withdraw or develop the property for six years did not

vitiate this fact.

2. The Condominium Act allows for the creation of a “convert-

ible area,” which can be either “a unit or a portion of the common

element,” wherein general or limited common elements or condo-

minium units may subsequently be created. MCL 559.105(3).

3. The plain language of the Condominium Act prohibits the

separate taxation of the disputed property except through the

condominium units. MCL 559.137(5); MCL 559.161; MCL

559.231(1). The disputed property, as a common element, is subject

136 287 M

ICH

136 [Jan

to ownership and taxation only through the individual condo-

minium units, because the individual condominium units are

owned and taxed as individual units plus their inseparable and

appurtenant shares of the common elements. MCL 559.161. Prop-

erty taxes may only be assessed against the individual units, not

the total property of the project. MCL 559.231(1). No part of the

project may be taxed separately from the units, even when the

developer reserves development rights.

4. Because the owners of the disputed property are the coown-

ers of the individual condominium units and, pursuant to MCL

211.3, where the owner of the property is known, the owner is the

one to be taxed, it is unnecessary to determine whether the taxes

could be assessed on the basis that Paris Meadows is the alleged

agent of the coowners.

Reversed and remanded.

1. C

ONDOMINIUMS —

ORDS AND

HRASES —

OMMON

LEMENTS —

ONDOMINIUM

NITS

The “common elements” of a condominium project are the portions

of the project other than the condominium units; a “condominium

unit” is that portion of a project designed and intended for

separate ownership and use, as described in the master deed,

regardless of whether it is intended for residential, office, indus-

trial, business, or recreational use, use as a time-share unit, or any

other type of use (MCL 559.103[7], 559.104[3]).

2. C

ONDOMINIUMS —

ORDS AND

HRASES —

ONVERTIBLE

REAS

The Condominium Act defines a “convertible area” as a unit or a

portion of the common elements of the condominium project

referred to in the condominium documents within which addi-

tional condominium units or general or limited common elements

may be created in accordance with the act (MCL 559.105[3]).

3. C

ONDOMINIUMS —

AXATION

Special assessments and property taxes shall be assessed against the

individual condominium units identified as units of the condo-

minium subdivision plan and not on the total property of the

project or any other part of the project; each condominium unit,

together with and inseparable from its appurtent share of the

common elements, shall be a sole property subject to ownership,

mortgaging, taxation, possession, sale, and all types of juridical

acts, inter vivos or causa mortis independent of the other condo-

minium units (MCL 559.161, 559.231[1]).

2010] P

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137

Charron & Hanisch, P.L.C. (by David W. Charron and

Heidi L. Hohendorf), for petitioner.

Law, Weathers & Richardson, P.C. (by Jessica L.

Wood and Jeffrey T. Gray), for respondent.

Before: M

ARKEY

,P.J., and B

ANDSTRA

and M

URRAY

,JJ.

URRAY

,J.

I. INTRODUCTION

Petitioner, Paris Meadows, L.L.C., appeals as of right

a July 23, 2008, judgment entered by the Michigan Tax

Tribunal that granted the city of Kentwood’s motion for

summary disposition and denied Paris Meadows’ mo-

tion for summary disposition. The central question on

appeal is whether the city can tax the common element

of Paris Meadows’ condominium development indepen-

dent of the condominium units. We hold that it cannot,

and therefore reverse the decision of the Tax Tribunal

and remand for further proceedings.

II. FACTS AND PROCEEDINGS

Paris Meadows developed a residential 24-unit con-

dominium project, and recorded a master deed for the

project on December 29, 2005, in Kent County. The

disputed property is designated as a “convertible area”

on the subdivision plan, and is defined in the master

deed as part of the “general common elements” of the

condominium project. The general common elements

include “[t]he land (including air space) described in

Section 2.1 [setting forth the legal description of the

condominium project] of this Master Deed (except for

any land which is part of a Condominium Unit and any

portion designated in Exhibit B as a Limited Common

138 287 M

ICH

136 [Jan

Element).”

Paris Meadows, as the developer, reserved

the right to contract or expand “all or any portion of the

lands described from time to time in Section 2.1 [except

for units that are sold or subject to a binding purchase

agreement] by an amendment or series of amendments

to the Master Deed... without the consent of any

Co-owner, mortgagee, or other person” before six years

from the date the master deed was recorded. Paris

Meadows similarly reserved the right to convert, within

those six years, “any General Common Element into

one or more additional Condominium Units and/or into

Limited Common Element(s) appurtenant to one or

more Units, by an amendment...without the consent

of any Co-owner, mortgagee, or other person.” Although

Paris Meadows reserved these development rights, the

co-owners were granted exclusive rights to their indi-

vidual units, the appurtenant limited common ele-

ments, and have an undivided interest in, “and an

inseparable right to share with other Co-owners, the

General Common Elements of the Project as described

in this Master Deed.”

This dispute originated in March 2007, when the city

sent Paris Meadows a notice of assessment regarding

Paris Meadows’ property. The city assessed the disputed

property at $240,500, and indicated a taxable value of

$240,500. Paris Meadows asserted that the disputed prop-

erty was not subject to separate taxation against it be-

cause the property consisted solely of the general common

element area of the condominium project, and no condo-

minium units were established on the property.

Paris Meadows petitioned for review of the assess-

ment to the Kentwood Board of Review, arguing

The limited common elements include cable and utility lines, decks,

patios, porches, driveways, sidewalks, parking areas, and heating and

cooling appliances.

2010] P

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139

that the general common elements of the project were

not subject to taxation under MCL 559.231 of the

Michigan Condominium Act (MCA), MCL 559.101 et

seq. The Board of Review denied Paris Meadows’ appeal

and sustained the assessed and taxable value of

$240,500. Paris Meadows appealed that decision to the

Tax Tribunal’s small claims division, where it moved

for summary disposition, again arguing that the dis-

puted property consisted only of the “general common

element, and not a condominium unit, pursuant to the

Michigan Condominium Act.”

In its response to Paris Meadows’ motion for sum-

mary disposition, and in its own motion for summary

disposition, the city argued—relying on Richmond

Street, LLC v City of Walker, 16 MTTR 571 (Docket No.

337980, June 23, 2008),—that the disputed property

consisted of a “convertible area,” not a general common

element, to which Paris Meadows had the exclusive

right (for six years) to develop with additional condo-

minium units, and noted that utilities and streets were

already constructed before the master deed was re-

corded. The city also argued that Paris Meadows may be

treated as the owner of the property and taxed as the

owner, as Paris Meadows has control over the property

and is the agent of the co-owners under the master

deed.

The Tax Tribunal denied Paris Meadows’ motion for

summary disposition, and granted the city’s motion for

summary disposition. In doing so, the Tax Tribunal

noted that because the master deed provided that the

developer reserved the right to contract, convert, or

expand the condominium project (including the dis-

puted area) for six years after the master deed was filed,

under its earlier decision in Bay Harbor Yacht Club v

Petoskey, 16 MTTR 339 (Docket No. 298777, May 2,

140 287 M

ICH

136 [Jan

2006), the disputed property was not a “true” common

element until after the six years ran because the com-

mon element was not inseparable from the individual

condominium units. Thus, the Tax Tribunal upheld the

assessment on Paris Meadows for the common element.

III. ANALYSIS

This Court reviews de novo the Tax Tribunal’s deci-

sion to grant or deny a motion for summary disposition

under MCR 2.116(C)(10). Signature Villas, LLC v City

of Ann Arbor, 269 Mich App 694, 698; 714 NW2d 392

(2006). This Court must view the affidavits, pleadings,

and other documentary evidence in the light most

favorable to Paris Meadows, and decide whether Paris

Meadows has raised a genuine issue of material fact. Id.

at 698-699; MCR 2.116(C)(10). The central dispute in

this case involves the proper interpretation and appli-

cation of statutory language, which is a question of law

that this Court reviews de novo. Signature Villas, supra

at 699. “The primary goal of statutory interpretation is

to give effect to the intent of the Legislature.” In re MCI

Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164

(1999). This Court begins by reviewing the text of the

statute at issue; if the language is unambiguous, it is

presumed that the Legislature intended the meaning

plainly expressed, and judicial construction of the stat-

ute is not permitted. Id. Nothing may be read into a

clear statute “that is not within the manifest intent of

the Legislature as derived from the words of the statute

itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63;

642 NW2d 663 (2002).

The tribunal’s factual findings are to be affirmed if

supported by competent, material, and substantial evi-

dence. Meadowlanes Ltd Dividend Housing Ass’n v City

2010] P

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141

of Holland, 437 Mich 473, 482; 473 NW2d 636 (1991).

Because we are reviewing a decision of a state agency,

we give

“respectful consideration” and [must have] “cogent rea-

sons” for overruling an agency’s interpretation. Further-

more, when the law is “doubtful or obscure,” the agency’s

interpretation is an aid for discerning the Legislature’s

intent. However, the agency’s interpretation is not binding

on the courts, and it cannot conflict with the Legislature’s

intent as expressed in the language of the statute at issue.

[In re Complaint of Rovas Against SBC Michigan, 482

Mich 90, 103; 754 NW2d 259 (2008).]

Finally, we must recall that “the authority to impose a

tax must be expressly authorized by law; it will not be

inferred.” Michigan Bell Tel Co v Dep’t of Treasury, 445

Mich 470, 477; 518 NW2d 808 (1994) (citations omit-

ted).

As noted, the critical issue is whether the convertible

property, designated as a common element, can be sepa-

rately valued and assessed for taxation purposes where

the condominium project developer retains the right to

convert, contract, or otherwise develop the convertible

property for six years. Several statutory definitions of key

terms must be considered. Under the MCA, recording a

master deed that complies with the MCA establishes the

condominium project. MCL 559.172(1). A “condominium

project” under the MCA is “a plan or project consisting of

not less than 2 condominium units established in con-

formance with this act.” MCL 559.104(1). The MCA

defines “condominium unit” as “that portion of the con-

dominium project designed and intended for separate

ownership and use, as described in the master deed,

regardless of whether it is intended for residential, office,

industrial, business, recreational, use as a time-share unit,

or any other type of use.” MCL 559.104(3). A “co-owner”

is defined as “a person, firm, corporation, partnership,

142 287 M

ICH

136 [Jan

association, trust, or other legal entity or any combination

of those entities, who owns a condominium unit within

the condominium project.” MCL 559.106(1). Pursuant to

MCL 559.165, the co-owners are required to comply with

the terms of the master deed and the association bylaws.

Importantly, “common elements” are defined as “the

portions of the condominium project other than the

condominium units.” MCL 559.103(7). The “convert-

ible area” is designated as “a unit or a portion of the

common elements of the condominium project referred

to in the condominium documents within which addi-

tional condominium units or general or limited common

elements may be created in accordance with this act.”

MCL 559.105(3).

In addition, the MCA provides that

when a condominium project is established, “each con-

dominium unit, together with and inseparable from its

appurtenant share of the common elements, shall be a

sole property subject to ownership, mortgaging, taxa-

tion, possession, sale, and all types of juridical acts,

inter vivos or causa mortis independent of the other

condominium units.” MCL 559.161. “Each co-owner

has an exclusive right to his condominium unit and has

such rights to share with other co-owners the common

elements of the condominium project as are designated

by the master deed.” MCL 559.163.

In assessing property taxes on condominium projects,

MCL 559.231 provides, in part:

(1) Special assessments and property taxes shall be

assessed against the individual condominium units identi-

fied as units of the condominium subdivision plan and not

“General common elements” are “the common elements other than

the limited common elements.” MCL 559.106(5). “Limited common

elements” are “a portion of the common elements reserved in the master

deed for the exclusive use of less than all of the co-owners.” MCL

559.107(2).

2010] P

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143

on the total property of the project or any other part of the

project, except for the year in which the condominium

project was established subsequent to the tax day....

(2) Special assessments and property taxes in any year in

which the property existed as an established condominium

project on the tax day shall be assessed against the indi-

vidual condominium unit, notwithstanding any subse-

quent vacation of the condominium project. Condominium

units shall be described for such purposes by reference to

the condominium unit number of the condominium subdi-

vision plan and the caption of the plan together with the

liber and page of the county records in which the approved

master deed is recorded. Assessments for subsequent real

property improvements to a specific condominium unit

shall be assessed to that condominium unit description

only. For property tax and special assessment purposes,

each condominium unit shall be treated as a separate single

unit of real property and shall not be combined with any

other unit or units and no assessment of any fraction of any

unit or combination of any unit with other units or

fractions of any unit shall be made, nor shall any division

or split of the assessment or taxes of any single condo-

minium unit be made notwithstanding separate or com-

mon ownership of the unit. [Emphasis added.]

The master deed may allocate “an undivided interest in

the common elements” to each condominium unit. MCL

559.137(1). Additionally, “the undivided interest in the

common elements allocated to any condominium unit

shall not be altered, and any purported transfer, encum-

brance, or other disposition of that interest without the

condominium unit to which it appertains is void,”

except where the MCA expressly provides otherwise.

MCL 559.137(5).

We were recently presented with a very similar case

in which we reversed the decision of the Tax Tribunal

and held that where the developer retained the right to

develop or remove land within the condominium

project, the land could not be taxed separately from the

144 287 M

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136 [Jan

condominium units under MCL 559.231. Richmond

Street, LLC v City of Walker, unpublished opinion per

curiam of the Court of Appeals, issued July 14, 2009

(Docket No. 286454).

In Richmond Street, LLC, supra,

16 MTTR at 574, the master deed referred to the

disputed property, an undeveloped wetland area, as the

general common elements. Like our case, in the master

deed the developer also reserved the right to elect,

within six years of recording the deed, to contract,

withdraw, expand, or convert any of the general com-

mon elements by amending the master deed without

the consent of any co-owners or others. Id. The Tax

Tribunal held that “[t]he degree of control over prop-

erty by a developer in a convertible condominium

project like Richmond’s straddles the fence between

permitted statutory control and actual control.” Id. at

577. Examining the “market realities,” the Tax Tribu-

nal concluded that the developer “really controls the

land[.]” Id. The Tax Tribunal noted that merely desig-

nating a piece of property as a common area, while

reserving rights to the developer, does not remove the

property from taxation, and found that although the

option to convert or develop the property expired in six

years and did not exceed the statutory limit, the prop-

erty “labeled as a ‘common element’ is not truly a

common element until after the six years have run,

ending the developer’s rights to expand the condo-

minium development”; the co-owners of the units

therefore did not possess an inseparable appurtenant

share of the common elements until the six years

elapsed. Id.

Although unpublished opinions of this Court are not binding prece-

dent, MCR 7.215(C)(1); In re Application of Indiana Michigan Power Co,

275 Mich App 369, 380; 738 NW2d 289 (2007), they may, however, be

considered instructive or persuasive. Id. In the present circumstances,

Richmond Street, LLC, provides instructive and persuasive value.

2010] P

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145

On appeal, this Court held that, according to the

MCA’s definitions of a condominium unit and common

elements, “a condominium project consists of ‘units’

and ‘common elements’ only. Any part of the project

that is not a unit must be a common element.” Rich-

mond Street, LLC, unpub op at 2 (emphasis in original).

Further, this Court stated that under MCL 559.231(1)

and MCL 559.161, the condominium units were prop-

erly assessed on the basis of their individual value plus

the value of the common elements that was “prorated

by the value of each unit and added to the unit’s tax

bill.” Id. This Court concluded that the Tax Tribunal

erroneously

used its own definition of “common elements,” rather than

the one provided by statute, and decided that “common

elements” could only include land over which all co-owners

had equal control, so the land was not a common element.

This reasoning is clearly contrary to the plain language of

the MCA. Under the definition provided in MCL

559.103(7), every part of a project that is not part of a unit

is a “common element.” Notably, some of these common

elements might include “limited common elements,” which

by definition are not subject to the use of all co-owners

equally. MCL 559.107(2). Although a developer may retain

rights to withdraw or develop land within the project, until

it records an amended master deed the land remains part of

the project and, under MCL 559.231, no part of the project

is taxed separately from the units. The MTT failed to

recognize that although units and their appurtenant com-

mon elements are inseparable, the MCA fully contemplates

that the size of common elements can be altered through

the means set forth in the Act. The MTT seemed to find an

irresolvable conflict between petitioner’s reserved rights

and the MCA’s provision in MCL 559.137(5) that a transfer

of an interest in common elements separate from a unit is

void, but that provision is only applicable “[e]xcept to the

extent otherwise expressly provided by this act....”[MCL

559.137(5).] Because the MCA expressly provides for the

146 287 M

ICH

136 [Jan

withdrawal or conversion of common elements, the MTT

erred in finding that petitioner’s reservation of such rights

was contrary to the MCA. [Id., unpub op at 2-3 (emphasis

in original).]

Indicating that the Tax Tribunal “erred in imposing its

view of what the statute should read instead of simply

reading the definitions and provisions that the Legisla-

ture included in the act,” this Court concluded that the

city lacked authority under the MCA “to tax any part of

a condominium project separately from the units unless

that part has been withdrawn according to the proce-

dures set forth in the MCA.” Id., unpub op at 3.

We agree with this rationale, and adopt it as our own.

Consequently, we hold that the Tax Tribunal erred by

concluding that Paris Meadows’ reservation of rights to

develop the disputed property rendered the property

not a common element, and thus separately taxable.

According to the language in the master deed and the

MCA, the disputed property was a common element, in

which the co-owners held an undivided, inseparable

interest, and the fact that Paris Meadows retained the

right to withdraw or develop the property for six years

did not vitiate this fact. MCL 559.103(7); Richmond

Street, LLC, unpub op at 2-3.

The plain language of the MCA specifically provides

for the right of the developer to subsequently develop or

otherwise modify property within the condominium

project. For example, pursuant to MCL 559.132, if the

project is an expandable project, then the master deed

must explicitly include this reservation of rights by the

developer, any restrictions on this election (such as

co-owner consent), a time limit of not more than six

years, a description of the land that may be added, the

specific methods for expansion, and any limitations on

the development. Where the project is a “contractable”

2010] P

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147

condominium project, the master deed must contain a

reservation explicitly providing the developer with an

option to elect to withdraw land, any restrictions on

electing the option (such as co-owner consent), a time

limit of six years, a description of the subject property,

and any restrictions on withdrawing the land. MCL

559.133. Additionally, the MCA also allows for the

creation of a “convertible area,” which can be either “a

unit or a portion of the common elements,” wherein

general or limited common elements or condominium

units may subsequently be created. MCL 559.105(3);

MCL 559.131 (providing that certain specific informa-

tion regarding the potential development of convertible

areas of the project must be contained in the master

deed). In general, “or” is a disjunctive term, indicating

a choice between two alternatives, i.e., a unit or a

portion of the common elements. Auto-Owners Ins Co v

Stenberg Bros, Inc, 227 Mich App 45, 50; 575 NW2d 79

(1997). MCL 559.141(1) specifically provides that the

“developer may convert all or any portion of any con-

vertible area into condominium units or common ele-

ments, including, without limitation, limited common

elements, subject to the restrictions which the condo-

minium documents may specify.”

Similar to the Tax Tribunal in Richmond Street,

LLC, the Tax Tribunal in the present case “seemed to

find an irresolvable conflict” as a result of the fact that

Paris Meadows reserved rights in the common elements

that were owned by all co-owners of the condominium

units. Richmond Street, LLC, unpub op at 2. Interpret-

ing the MCA to preclude a developer from retaining

rights in the common elements goes against the plain

language of the act. The MCA clearly provides for the

reservation of development rights by the developer. The

Legislative intent is further demonstrated by the fact

that the MCA permits the master deed to designate

148 287 M

ICH

136 [Jan

what are the common elements of the condominium

project and what rights the units’ co-owners hold in

them, as the master deed did in this case. MCL 559.163;

MCL 559.137(1).

In conclusion, the plain language of the MCA prohib-

its the separate taxation of the disputed property except

through the condominium units. MCL 559.161; MCL

559.137(5); MCL 559.231(1). The disputed property, as

a common element, was subject to ownership and

taxation only through the individual condominium

units, because the individual condominium units are

owned and taxed as individual units plus their insepa-

rable and appurtenant shares of the common elements.

MCL 559.161. Property taxes may only be assessed

against the individual units, not the total property of

the project. MCL 559.231(1). As this Court previously

held, “no part of the project is taxed separately from the

units,” Richmond Street, LLC, unpub op at 2, even

when the developer reserves development rights. MCL

559.103(7). The Tax Tribunal erred by concluding oth-

erwise.

The city’s final argument is that it could assess taxes

on the disputed property against Paris Meadows be-

cause it was an agent of the co-owners. However,

whether Paris Meadows was an agent of the co-owners

is irrelevant, because, pursuant to MCL 211.3, if the

owner of the property is known, the owner is taxed:

Real property shall be assessed in the township or place

where situated, to the owner if known, and also to the

occupant, if any; if the owner be not known, and there be

an occupant, then to such occupant, and either or both

shall be liable for the taxes on said property, and if there be

no owner or occupant known then as unknown. A trustee,

guardian, executor, administrator, assignee or agent, hav-

ing control or possession of real property, may be treated as

the owner.

2010] P

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149

Hence, resort to the agent of the owner is not necessary

because the owners of the disputed property are known:

the co-owners of the individual condominium units.

Reversed and remanded. No costs, a public question

being involved. We do not retain jurisdiction.

150 287 M

ICH

136 [Jan

MICHIGAN’S ADVENTURE, INC v DALTON TOWNSHIP

ESSEX v DALTON TOWNSHIP

Docket Nos. 283770 and 283869. Submitted December 2, 2009, at Grand

Rapids. Decided January 14, 2010, at 9:00 a.m.

Michigan’s Adventure, Inc., and Bruce J. Essex and others brought

separate actions in the Muskegon Circuit Court against Dalton

Township, alleging that the special assessments imposed on plain-

tiffs’ real property to improve a sewer system far exceeded any

benefit conferred by the improvement, that their constitutional

rights were violated, and that the township failed to follow proper

procedures. The court, William C. Marietti, J., permitted

Muskegon County to intervene in the actions, consolidated the

actions, and determined that it had subject-matter jurisdiction

regarding plaintiffs’ claims that defendant failed to properly follow

statutory procedural requirements. The court concluded, however,

that it was otherwise without jurisdiction to hear plaintiffs’ claims.

The plaintiffs appealed separately and their appeals were consoli-

dated.

The Court of Appeals held:

1. The Tax Tribunal has exclusive and original jurisdiction

over a proceeding for direct review of a final decision of any agency

relating to assessments and a proceeding for a refund or redeter-

mination of a tax levied under the property tax laws of this state.

This jurisdiction extends to taxpayers’ constitutional arguments

that a tax assessed is arbitrary and without foundation.

2. Allegations that a taxing authority failed to follow statutory

procedures for imposing assessments fall within the jurisdiction of

the Tax Tribunal.

3. Neither the Headlee Amendment, Const 1963, art 9, § 32,

nor its enabling legislation, MCL 600.308a, extend the jurisdiction

of the courts to special assessment disputes. Special assessments

generally are not taxes for the purposes of constitutional tax

limitations.

4. The alleged special assessment was not so clearly a tax that

jurisdiction was conferred on the circuit court under the Headlee

Amendment. It is appropriate for the Tax Tribunal to initially

2010] M

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’

DVENTURE V

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151

consider plaintiffs’ claim of an alleged violation of the Headlee

Amendment in the context of plaintiffs’ challenge to the special

assessment.

5. The judgment and orders of the trial court must be reversed

and the matter must be remanded to the extent that the trial court

determined that it had subject-matter jurisdiction regarding the

claims that defendant failed to follow statutory procedural re-

quirements. The orders and judgments must be affirmed to the

extent that the trial court held that it was otherwise without

jurisdiction to hear plaintiffs’ claims.

Affirmed in part, reversed in part, and remanded.

1. T

AXATION —

RIBUNAL —

URISDICTION —

SSESSMENTS

The Tax Tribunal has exclusive and original jurisdiction over

proceedings for direct review of a final decision of an agency

relating to tax assessments, including constitutional arguments

that a tax assessment is arbitrary and without foundation or that

the taxing authority failed to follow statutory procedures for

imposing assessments.

2. T

AXATION —

PECIAL

SSESSMENTS

Special assessments are not taxes for the purposes of constitutional

tax limitations; the differences between a special assessment and a

tax are that a special assessment can be levied only on land and

cannot be made a personal liability of the person assessed, and also

that a special assessment is based wholly on benefits and is

exceptional both as to time and locality.

Parmenter O’Toole (by John C. Schrier and Adam G.

Zuwerink) for Michigan’s Adventure, Inc.

Miller Johnson (by J. Scott Timmer) for Bruce J.

Essex and others.

Craig A. Rolfe, PLLC (by Craig A. Rolfe), and James

W. Porter, P.C. (by James W. Porter), for Dalton Town-

ship.

Williams, Hughes & Cook, PLLC (by Douglas M.

Hughes and Eric C. Grimm), for Muskegon County.

Before: M

ARKEY

,P.J., and B

ANDSTRA

and M

URRAY

,JJ.

152 287 M

ICH

151 [Jan

ANDSTRA

, J. In these consolidated cases and appeals,

plaintiffs are taxpayers who own real property against

which defendant Dalton Township imposed what it

called a “special assessment” to raise money for a sewer

project. The primary issue raised on this appeal, the

resolution of which disposes of the appeals, is one of

jurisdiction: did the lower court here have jurisdiction

to decide whether the special assessments were prop-

erly imposed on plaintiffs or, instead, did the Michigan

Tax Tribunal (MTT) have exclusive jurisdiction to de-

cide plaintiffs’ claims? We conclude that the MTT had

exclusive jurisdiction and, accordingly, we affirm the

lower court decision in part, reverse it in part, and

remand.

Because the dispositive issue raised here is one of

jurisdiction, it is not necessary to recite at length either

the facts giving rise to these cases or the substance of

plaintiffs’ arguments regarding the propriety of the

special assessments. Briefly stated, plaintiffs’ conten-

tion is that the special assessments imposed by the

township to improve a sewer system far exceed any

benefit conferred by that sewer system on the proper-

ties against which the assessments were made. Plain-

tiffs claim that their constitutional rights were violated

in a number of ways and, further, that the Township

failed to follow proper procedures under the township

public improvement act, MCL 41.721 et seq.

As already noted, the dispositive issue raised on

appeal is one of jurisdiction, which presents a question

of law that we review de novo. White v Harrison-White,

280 Mich App 383, 387; 760 NW2d 691 (2008). The

MTT has “exclusive and original jurisdiction” over “[a]

proceeding for direct review of a final decision...ofan

agency relating to assessment...[and] [a] proceeding

for a refund or redetermination of a tax levied under the

2010] M

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property tax laws of this state.” MCL 205.731(a) and

(b). The MTT’s jurisdiction extends to taxpayers’ con-

stitutional arguments that a tax assessment is arbitrary

and without foundation. Wikman v City of Novi, 413

Mich 617, 646-647; 322 NW2d 103 (1982). See Meadow-

brook Village Assoc v Auburn Hills, 226 Mich App 594,

597; 574 NW2d 924 (1997) (“The Tax Tribunal may...

consider claims that an assessment is arbitrary or

without foundation even if couched in constitutional

terms.”); Johnston v Livonia, 177 Mich App 200, 207;

441 NW2d 41 (1989) (“The tribunal may decide claims

framed in constitutional terms alleging that a tax

assessment was arbitrary and capricious and without

foundation.”); Johnson v Michigan, 113 Mich App 447,

459; 317 NW2d 652 (1982) (“[T]he tax tribunal has

equitable jurisdiction and may consider constitutional

questions relating to the validity of property tax assess-

ments.”); Grosse Ile Comm for Legal Taxation v Grosse

Ile Twp, 129 Mich App 477, 486; 342 NW2d 582 (1983)

(Michigan Tax Tribunal has jurisdiction over action

alleging that township’s total property tax levy ex-

ceeded constitutional limitations). Similarly, allegations

that a taxing authority failed to follow statutory proce-

dures for imposing assessments fall within the jurisdic-

tion of the MTT. Johnston, 177 Mich App at 207-208.

While all these cases undermine plaintiffs’ claim that

the MTT did not have exclusive jurisdiction over the

constitutional and statutory questions they raise, none

of them directly confronted the Headlee Amendment

argument that plaintiffs advance. That argument is

potentially problematic because, notwithstanding the

exclusive jurisdiction of the MTT over the assessment

and tax matters just discussed, the Headlee Amend-

ment to the Michigan Constitution and its enabling

legislation specifically grant the courts jurisdiction over

Headlee Amendment challenges against the imposition

154 287 M

ICH

151 [Jan

of a “tax.” Const 1963, art 9, § 32; MCL 600.308a.

However, neither the Headlee Amendment nor the

statute extends jurisdiction to special assessment dis-

putes and, generally, special assessments are not taxes

for the purposes of constitutional tax limitations.

Kadzban v Grandville, 442 Mich 495, 500; 502 NW2d

299 (1993); Niles Twp v Berrien Co Bd of Comm’rs, 261

Mich App 308, 323-324; 683 NW2d 148 (2004).

Plaintiffs claim that, even though defendant called

the contested action here a “special assessment,” defen-

dant’s “true purpose” was not to provide sewer service

specifically to the affected properties but, instead, to

undertake a “massive infrastructure improvement pro-

gram” for the general benefit of the broader community.

Thus, plaintiff claims that this case really involves the

imposition of a “disguised tax” and that, at least with

respect to their Headlee Amendment claims against

that tax, jurisdiction is properly vested in the circuit

court. We disagree.

“In determining jurisdiction, this Court will look

beyond a plaintiff’s choice of labels to the true nature of

the plaintiff’s claim.” Manning v Amerman, 229 Mich

App 608, 613; 582 NW2d 539 (1998). “A special assess-

ment is a levy upon property within a specified district.

Although it resembles a tax, a special assessment is not

a tax. In contrast to a tax, a special assessment is

imposed to defray the costs of specific local improve-

ments, rather than to raise revenue for general govern-

mental purposes.” Kadzban, 442 Mich at 500 (citation

omitted). In Blake v Metro Chain Stores, 247 Mich 73,

77; 225 NW 587 (1929), our Supreme Court set out the

test for distinguishing the two:

“The differences between a special assessment and a tax

are that (1) a special assessment can be levied only on land;

(2) a special assessment cannot (at least in most States) be

2010] M

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DVENTURE V

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155

made a personal liability of the person assessed; (3) a

special assessment is based wholly on benefits; and (4) a

special assessment is exceptional both as to time and

locality.” [citation omitted.]

Plaintiffs have conceded that, under factors (1), (2), and

(4) of the Blake analysis, this case involves special

assessments; their only contention, under the third

Blake factor, is that a tax is involved here because the

benefit being derived by the impacted parcels of prop-

erty is greatly disproportionate to the costs imposed

against those parcels. In light of that concession, we do

not conclude that, notwithstanding the fact that the

township called its action a special assessment, it was so

clearly a tax instead that jurisdiction was conferred on

the court under the Headlee provisions.

We note that the claims plaintiffs raise here are

similar to those considered by our Supreme court in

Wikman, 413 Mich at 647:

Plaintiffs’ claim is that these special assessments were

not made according to the benefits received as required by

law. The resolution of this claim involves many fact deter-

minations. The membership of the Tax Tribunal is struc-

tured to provide it with experience in resolving these fact

issues. The tribunal’s de novo review gives it the opportu-

nity to rectify any errors in the agency’s determination.

Similar fact issues underlie plaintiffs’ claim here that

the special assessments were, in fact, a disguised tax,

subject to the Headlee Amendment. Thus, it is appro-

priate for the Tax Tribunal to initially consider plain-

tiffs’ claim of an alleged violation of the Headlee

Amendment in the context of their challenge to the

special assessments. Any decision by the Tax Tribunal

will be subject to judicial review on appeal.

To the extent that the trial court determined it had

subject-matter jurisdiction regarding plaintiffs’ claims

156 287 M

ICH

151 [Jan

that defendant failed to properly follow statutory pro-

cedural requirements, we reverse and remand. To the

extent that the trial court otherwise determined that it

was without jurisdiction to hear plaintiffs’ claims, we

affirm.

Neither party having fully prevailed, no costs should

be imposed. MCR 7.219.

2010] M

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157

PEOPLE v McCAULEY

Docket No. 281197. Submitted January 5, 2010, at Detroit. Decided

January 19, 2010, at 9:00 a.m.

Dedrick L. McCauley was convicted by a jury in the Wayne Circuit

Court, Craig S. Strong, J., of first-degree felony murder, second-

degree murder, three counts of assault with intent to commit murder,

and possession of a firearm during the commission of a felony. He was

sentenced to life in prison for the felony-murder conviction, concur-

rent prison terms of 450 to 900 months for the second-degree murder

conviction and 225 to 450 months for each assault conviction, and a

consecutive two-year term of imprisonment for the felony-firearm

conviction. Defendant appealed, alleging, in part, that he was denied

the effective assistance of counsel in connection with his pretrial

rejection of a plea offer whereby he would have been allowed to plead

guilty of second-degree murder, with an 18-year minimum sentence,

and possession of a firearm during the commission of a felony, in

exchange for the dismissal of the remaining charges. The Court of

Appeals, Z

AHRA

,P.J., and T

ALBOT

and W

ILDER

, JJ., while retaining

jurisdiction, remanded the matter to the trial court for a hearing on

his claim regarding ineffective assistance of counsel. Unpublished

order of the Court of Appeals, entered August 29, 2008 (Docket No.

281197). On remand, the trial court determined that defendant

established a claim of ineffective assistance of counsel because de-

fense counsel failed to explain the concept of aiding and abetting to

defendant and failed to inform defendant that as an aider and abettor

he could still be convicted of first-degree murder even if he did not fire

the fatal shot.

The Court of Appeals held:

1. A defendant, to establish ineffective assistance of counsel,

must show that his or her attorney’s performance was objectively

unreasonable in light of prevailing professional norms and that,

but for the attorney’s error or errors, a different outcome reason-

ably would have resulted. The same standard applies to a claim

based on counsel’s failure to properly inform the defendant of the

consequences of accepting or rejecting a prosecutor’s plea offer.

2. The record supports the trial court’s determinations that

defense counsel’s failure to explain the concept of aiding and

158 287 M

ICH

158 [Jan

abetting to defendant, and failure to inform him that he could still

be convicted of first-degree murder even if he did not fire the fatal

shot, fell below an objective standard of reasonableness and that

defendant was prejudiced by his counsel’s performance.

3. Defendant’s convictions and sentences must be condition-

ally vacated and the case must be remanded to allow the prosecu-

tion to reinstate its original plea offer, and to allow defendant, with

the assistance of counsel, to consider that offer and enter a plea in

accordance with its terms. If the prosecution presents a new offer

in excess of its original offer, it must rebut the presumption of

vindictiveness that arises. If the prosecution meets this burden,

the parties may negotiate a new plea. If the prosecution does not

overcome the presumption and refuses to reinstate its original plea

offer, defendant’s convictions and sentences must be vacated in

full. Conversely, if defendant refuses to accept the original plea

offer after being given a reasonable opportunity to do so, the

original convictions and sentences must be reinstated.

Convictions and sentences conditionally vacated and case re-

manded for further proceedings.

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

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, Timothy A. Baughman, Chief of Research, Train-

ing, and Appeals, and Olga Agnello, Principal Attorney,

Appeals, for the people.

State Appellate Defender (by Douglas W. Baker), for

defendant.

Before: W

ILDER

,P.J., and O’C

ONNELL

and T

ALBOT

,JJ.

URIAM

. Defendant was convicted by a jury of

first-degree felony murder, MCL 750.316(1)(b), second-

degree murder, MCL 750.317,

three counts of assault

with intent to commit murder, MCL 750.83, and pos-

session of a firearm during the commission of a felony,

MCL 750.227b. He was sentenced to life in prison for the

Defendant was convicted of second-degree murder as a lesser offense

to an original charge of first-degree premeditated murder. MCL

750.316(1)(a).

2010] P

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159

felony-murder conviction, concurrent prison terms of 450

to 900 months for the second-degree murder conviction

and 225 to 450 months for each assault conviction, and a

consecutive two-year term of imprisonment for the felony-

firearm conviction. He appeals as of right. We condition-

ally vacate defendant’s convictions and sentences and

remand for further proceedings.

Defendant’s convictions arise from the November 8,

2006, shooting death of Peter Issa. The prosecution’s

theory at trial was that Housam Baydoun lured his

intended victim, Mustapha Dallal, and three other men,

Issa, Scotty Khemoro, and Rony Khemoro, to a gas

station in Detroit under the pretext that he would sell

them Vicodin. Instead, he sent defendant to conduct the

transaction. According to the surviving victims, defen-

dant attempted to rob them and began shooting inside

their car. There was evidence that a second gunman

also approached the car and began shooting, but that

person was never identified. Issa was killed and Dallal

and Scotty received nonfatal gunshot wounds.

Defendant denied intending to rob the victims. He

claimed that while he was inside the victims’ car, Rony

Khemoro produced what appeared to be a gun, and then

a second gunman unexpectedly arrived and began firing

at the car. Defendant claimed that he disarmed Rony

and then fired his own gun at the unidentified gunman

in self-defense, and then fled. Defendant denied firing

the shot that killed Issa, and claimed that it was the

unidentified gunman who shot and killed Issa.

After defendant filed his claim of appeal, this Court,

while retaining jurisdiction, granted defendant’s motion

to remand for a Ginther

hearing on his claim that he

was denied the effective assistance of counsel in con-

People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

160 287 M

ICH

158 [Jan

nection with his pretrial rejection of a plea offer

whereby he would have been allowed to plead guilty of

second-degree murder, with an 18-year minimum sen-

tence, and felony-firearm, in exchange for the dismissal

of the remaining charges. Defendant testified that he

knew that he could not have fired the shot that killed

Issa and that he was unwilling to accept the prosecu-

tor’s plea offer because he believed that he could not be

convicted of murder when he was not the individual

who shot Issa. Defendant denied being aware that even

if he did not fire the fatal shot, he could still be

convicted of first-degree murder under an aiding and

abetting theory. Defendant testified that if he had

known this,

I would not have gambled like that knowing I could be

convicted of the [sic] something because they believed that

I came with somebody or they believed that I was an

accomplice to another shooter. I would have took the plea I

would not of gambled with my life like that.

Defendant testified that he told trial counsel that he

believed that the second shooter was shooting at him,

and that he had been set up for a robbery. Defense

counsel advised him that he had a good chance of

obtaining acquittal based on his self-defense claim.

Defendant’s trial attorney testified that defendant

was “adamant” about not accepting the prosecutor’s

plea offer because he had not killed anyone. Counsel

admitted that he “never had any discussion with [de-

fendant] about aiding and abetting.”

Following the hearing, the trial court found that

defendant had established a claim of ineffective assis-

tance of counsel. The court stated:

In the case at bar, counsel gave insufficient advice

during the plea-bargaining process. Defendant told his

attorney that he would not plead guilty to murder because

2010] P

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161

he did not fire the bullet that killed the deceased. Counsel

was aware of the two-shooter theory and professional

competence demanded that he explain to his client that he

could be convicted for murder as an accomplice even if he

did not himself fire the fatal shot. Instead counsel simply

accepted his client’s ill-informed decision and moved for-

ward to trial. Counsel’s performance was deficient.

The defendant was prejudiced because he turned down a

plea offer that he would have accepted if he had received

proper advice.

The trial court concluded that both prongs of the

ineffective assistance test were satisfied because it was

“reasonably likely that defendant would have pleaded

guilty and the trial court would have accepted the plea

under the terms offered by the prosecution.”

Defendant now renews his ineffective assistance of

counsel claim. Whether a person has been denied the

effective assistance of counsel is a mixed question of fact

and constitutional law. People v LeBlanc, 465 Mich 575,

579; 640 NW2d 246 (2002). We review the trial court’s

findings of fact at a Ginther hearing for clear error, and

review questions of constitutional law de novo. Id.

To establish ineffective assistance of counsel, a defen-

dant must show (1) that his attorney’s performance was

objectively unreasonable in light of prevailing professional

norms, and (2) that, but for his attorney’s error or errors,

a different outcome reasonably would have resulted.

Strickland v Washington, 466 US 668, 687-688; 104 S Ct

2052; 80 L Ed 2d 674 (1984); People v Carbin, 463 Mich

590, 599-600; 623 NW2d 884 (2001); People v Werner, 254

Mich App 528, 534; 659 NW2d 688 (2002). These same

standards apply where a defendant’s ineffective assistance

of counsel claim is based on counsel’s failure to properly

inform the defendant of the consequences of accepting or

rejecting a prosecutor’s plea offer. Hill v Lockhart, 474 US

52, 58; 106 S Ct 366; 88 L Ed 2d 203 (1985).

162 287 M

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158 [Jan

Defendant relies on Magana v Hofbauer, 263 F3d 542

(CA 6, 2001), in which the court granted the petitioner’s

habeas corpus petition for review of his Michigan state

court convictions of narcotics offenses. The petitioner

argued that his trial counsel mistakenly informed him

that the prosecutor’s offer to allow him to plead guilty

of a single offense would not provide him with more

advantageous sentencing consequences than he would

receive if he were convicted of multiple offenses at trial.

Id. at 544-545. Defense counsel mistakenly believed

that sentences for multiple convictions would run con-

currently, when, in fact, they would run consecutively,

thus risking much longer incarceration if the defendant

were convicted of the multiple offenses at trial. Id. at

545. The court concluded that defense counsel’s advice,

which reflected an erroneous understanding of the

applicable sentencing statutes, was objectively defi-

cient. The court also concluded that the defendant was

prejudiced by defense counsel’s erroneous advice be-

cause there was a reasonable probability that he would

have accepted the prosecutor’s plea offer if he had been

properly informed.

The record in this case likewise supports defen-

dant’s claim that he declined to accept the prosecu-

tor’s plea offer because he was not properly informed

that he could be convicted of first-degree murder even

if he did not fire the fatal shot. Defense counsel

admitted that he was aware of defendant’s reluctance

to plead guilty because he did not kill anyone, and

was also aware of the prosecution’s intent to proceed

under an aiding and abetting theory. Despite this

knowledge, he failed to explain to defendant that he

could be convicted of first-degree murder as an aider

and abettor even if he did not fire the fatal shot. As

explained in People v Robinson, 475 Mich 1, 15; 715

NW2d 44 (2006), under MCL 767.39, “[a] defendant is

2010] P

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163

criminally liable for the offenses the defendant spe-

cifically intends to aid or abet, or has knowledge of, as

well as those crimes that are the natural and probable

consequences of the offense he intends to aid or

abet.” Without this knowledge, and without the

knowledge that the prosecution intended to proceed

under an aiding and abetting theory, defendant could

not make an informed decision whether to accept or

reject the prosecution’s plea offer. Therefore, the

record supports the trial court’s finding that defense

counsel’s failure to explain the concept of aiding and

abetting to defendant, and failure to inform him that

he could still be convicted of first-degree murder even

if he did not fire the fatal shot, fell below an objective

standard of reasonableness.

The record also supports the trial court’s finding that

defendant was prejudiced by trial counsel’s deficient

performance. Defendant, who was 18 years old at the

time, testified that he would not have “gambled” his life

by standing trial with the risk of a life sentence if he had

known that the jury could convict him of first-degree

murder under an aiding and abetting theory. The trial

court’s finding that it is probable that defendant would

have accepted the prosecutor’s plea offer if he under-

stood that he could be convicted under such a theory,

thereby subjecting him to life imprisonment, is not

clearly erroneous.

The more difficult issue is the question of remedy. In

Magana, 263 F3d at 553, the Sixth Circuit fashioned its

remedy for defense counsel’s ineffective assistance as

follows:

[W]e... REMAND this case to the district court to

grant the writ of habeas corpus within ninety days, condi-

tional upon a new plea hearing in state court at which

Magana has the opportunity to consider, with counsel, the

164 287 M

ICH

158 [Jan

state’s original plea offer. Should the state choose to offer

Magana a plea in excess of ten years, its original offer, the

district court must determine whether the state can rebut

the presumption of vindictiveness which would attach to

its offer. If the state can meet its burden, then the parties

are free to negotiate a new plea. If the state cannot

overcome the presumption and it refuses to reinstate its

original offer, then the writ must be granted.

Other courts have found that the remedy for a claim

of ineffective assistance arising from the rejection of a

plea agreement may vary, depending on the circum-

stances of the case. The Arizona Court of Appeals in

State v Donald, 198 Ariz 406, 415-416; 10 P3d 1193

(Ariz App, 2000), explained:

The United States Supreme Court has stated that the

remedy for a violation of the Sixth Amendment right to

counsel “should be tailored to the injury suffered from the

constitutional violation and should not unnecessarily in-

fringe on competing interests.” United States v. Morrison,

449 U.S. 361, 364, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981).

Inevitably, however, when a court seeks to redress such an

injury, some degree of remedial burden must be borne.

The State, for example, has expended resources in

conducting the original trial, and these resources cannot be

recouped. The expense and burden of trial, however, do not

excuse the court from providing a remedy for violation of a

defendant’s Sixth Amendment rights.

Donald has requested that this court order either spe-

cific performance of the original plea offer by the State or

a new trial. Other courts have ordered each of these

remedies, and variations of them. See, e.g.,[In re] Alvernaz,

[2 Cal 4th 924, 944; 8 Cal Rptr 2d 713; 830 P2d 747 (2002)]

(holding that prosecutor must either submit previously

offered plea bargain to the trial court for approval or must

elect, within 30 days, to retry defendant and resume plea

negotiation process; trial court not required to approve

plea agreement if submitted); [People v] Curry, [178 Ill 2d

509, 536-537; 687 NE2d 877 (1997)] (remanding for new

2010] P

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165

trial with opportunity to resume plea bargaining process);

Williams [v State, 326 Md 367, 383; 605 A2d 103 (1992)]

(allowing defendant opportunity to accept original plea; if

he does not do so within 30 days, original conviction and

sentence will be reinstated); [State v] Lentowski, [212 Wis

2d 849, 857-858; 569 NW2d 758 (Wis App, 1997)] (remand-

ing for new trial with opportunity for new plea bargain at

prosecutor’s discretion).

The United States Supreme Court has indicated that

specific performance of a plea agreement is a constitution-

ally permissible remedy. See Mabry v Johnson, 467 U.S.

504, 510 n. 11, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984);

Santobello v. New York, 404 U.S. 257, 263, 30 L. Ed. 2d 427,

92 S. Ct. 495 (1971). Indeed some courts hold that the most

appropriate remedy is to order the prosecution to reinstate

the plea offer, effectively restoring the defendant to the

position he or she would have occupied but for the deficient

performance of counsel. See Lewandowski [v Makel], 949

F.2d [884] 889 [CA 6, 1991)]; Williams, 605 A.2d at 110-11.

[Emphasis in original.]

We conclude that a modified version of the remedy

employed in Magana would be appropriate in this

case. Accordingly, we conditionally vacate defen-

dant’s convictions and sentences and remand this

case to allow the prosecution to reinstate its original

plea offer, and to allow defendant, with the assistance

of counsel, to consider that offer and enter a plea in

accordance with its terms. If the prosecution decides

to present a new offer in excess of its original offer, it

shall be required to rebut the presumption of vindic-

tiveness that arises. If the prosecution can meet that

burden, the parties would also be free to negotiate a

new plea. If the prosecution cannot overcome the

presumption and refuses to reinstate its original plea

offer, then defendant’s convictions and sentences

shall be vacated in full. Conversely, if defendant

refuses to accept the prosecution’s original plea offer

166 287 M

ICH

158 [Jan

after being given a reasonable opportunity to do so,

his original convictions and sentences shall be rein-

stated.

Defendant’s convictions and sentences are condition-

ally vacated and the case is remanded for further

proceedings consistent with this opinion. We do not

retain jurisdiction.

In the event defendant’s felony-murder conviction is reinstated, his

second-degree murder conviction and sentence shall remain vacated

because multiple murder convictions arising from the death of a single

victim violate constitutional double jeopardy protections. US Const, Am

V; Const 1963, art 1, § 15; People v Clark, 243 Mich App 424, 429-430; 622

NW2d 344 (2000).

2010] P

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PEOPLE v PERREAULT

Docket No. 288540. Submitted November 10, 2009, at Lansing. Decided

January 19, 2010, at 9:05 a.m.

Michael J. Perreault was convicted following a bench trial in the

Grand Traverse Circuit Court, Thomas G. Power, J., of possession

with intent to deliver marijuana. He appealed, alleging that the trial

court erroneously refused to suppress evidence obtained when the

assistant principal of his high school in Traverse City, while in the

presence of a police officer, searched his vehicle in the parking lot of

the school while defendant was also present, but without his consent

and without a warrant. The search had occurred after the assistant

principal and the police officer were informed that the Grand Rapids

area Silent Observer anonymous tip hotline had received an anony-

mous tip indicating that several students, including defendant, were

selling drugs at the high school.

The Court of Appeals held:

1. The police may search a motor vehicle without a warrant if

they have probable cause to believe that evidence of a crime may be

found therein. School officials may search a student’s person or

property on school premises on the lesser standard of reasonable

suspicion.

2. Reasonable suspicion requires articulable reasons and a par-

ticularized and objective basis for suspecting the particular person of

criminal activity. Whether a reasonable suspicion exists in a case

involving an anonymous tipster must be tested under the totality of

the circumstances with a view to the question whether the tip carries

with it sufficient indicia of reliability to support a reasonable suspi-

cion of criminal activity. An anonymous tip can provide reasonable

suspicion if it is considered along with a totality of the circumstances

that show the tip to be reliable. But, alone, without any indicia of

reliability or means to test the informant’s knowledge or credibility,

an anonymous tip is generally insufficient.

3. The anonymous tip was the only basis for the search in this

case. The anonymous tip contained little information concerning

defendant and was vague. There were no other circumstances to be

viewed.

168 287 M

ICH

168 [Jan

4. Some tips, completely lacking in indicia of reliability, would

either warrant no police response or require further investigation

before governmental authorities may act against a suspect. The tip

in this case is an example of such a tip. The tip itself did not

provide a sufficient basis to form a reasonable suspicion necessary

for the search of defendant’s vehicle. The search was unconstitu-

tional and the trial court’s order denying suppression of the

evidence must be reversed and the case must be remanded to the

trial court for further proceedings.

Reversed and remanded.

O’C

ONNELL

, J., dissenting, stated that the anonymous tip,

considered in light of the totality of the circumstances, provided

the assistant principal reasonable suspicion that defendant was

trafficking in drugs on school property and justified the assistant

principal’s search of defendant’s vehicle. The tip, considered in its

entirety, was sufficiently detailed to provide indicia of reliability.

There was also information corroborating the tip, aiding in the

determination that a reasonable suspicion existed to search defen-

dant’s vehicle. The tip and the corroborating information provided

the assistant principal a particularized suspicion that defendant

was engaging in criminal activity in his vehicle on school grounds

and that contraband was present in the vehicle. The tip carried

with it sufficient indicia of reliability to support a reasonable

suspicion of criminal activity. The assistant principal’s search did

not constitute a violation of defendant’s rights. The order denying

suppression of the evidence should be affirmed.

1. S

EARCHES AND

EIZURES —

CHOOLS —

EASONABLE

USPICION

The police may search a motor vehicle without a warrant if they

have probable cause to believe that evidence of a crime can be

found therein; school officials may search a student’s person or

property on school premises on the lesser standard of reasonable

suspicion; reasonable suspicion requires articulable reasons and a

particularized and objective basis for suspecting the particular

person of criminal activity.

2. S

EARCHES AND

EIZURES —

NONYMOUS

IPSTERS —

EASONABLE

USPICION

Whether reasonable suspicion for a search exists in a case involving

an anonymous tipster must be tested under the totality of the

circumstances with a view to the question whether the tip carries

with it sufficient indicia of reliability to support a reasonable

suspicion of criminal activity; an anonymous tip can provide

reasonable suspicion if it is considered along with a totality of the

circumstances that show the tip to be reliable, but, alone, without

2010] P

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ERREAULT

169

any indicia of reliability or means to test the informant’s knowl-

edge or credibility, an anonymous tip is generally insufficient to

support a reasonable suspicion.

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

Solicitor General, and Alan R. Schneider, Prosecuting

Attorney, for the people.

James M. Hunt, for defendant.

Before: T

ALBOT

,P.J., and O’C

ONNELL

and D

AVIS

,JJ.

AVIS

, J. Defendant was convicted by the trial court

of possession with intent to deliver marijuana, MCL

333.7401(2)(d)(iii). Defendant appeals as of right, argu-

ing that the trial court erred by refusing to suppress

evidence obtained in a search of his vehicle conducted

without a warrant. We reverse. This appeal has been

decided without oral argument pursuant to MCR

7.214(E).

Defendant was a student at Traverse City Central

High School. On April 24, 2008, the Grand Rapids area

Silent Observer

anonymous tip hotline received an

anonymous tip “regarding a VCSA

[2]

at Traverse City

Central High School.” The tipster stated that he had

previously been friends with a drug dealer at the school

but that the tipster had given up drugs and now wished

to report his former friend. The tipster described that

friend’s trafficking as “the largest threat to the school,”

but the tipster decided to also provide the names of and

details about other “big dealers,” one of whom was

stated as being defendant. The tipster provided exten-

sive information about his former friend, and less-

<http://www.silentobserver.org> (accessed January 15, 2010).

Presumably, this stands for “violation of the controlled substances

act.”

170 287 M

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168 [Jan

PINION OF THE

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detailed information about the other alleged dealers.

Defendant was simply described as a male caucasian

junior who sells marijuana “from school, his truck and

East Bade [sic] Park in Traverse City.” The Silent

Observer report was forwarded to the Traverse City

Police Department.

A few days later, Officer Evan Warsecke, who served

as a liaison officer for the school, forwarded the report

to Rick VanderMolen, assistant principal at the school.

The only further investigation taken by Officer War-

secke was to verify the vehicles registered to the named

dealers. However, at some point before the search of

defendant’s vehicle, a search of the principal suspect

(the tipster’s former friend) was conducted, and no

contraband was found. VanderMolen testified that,

other than a vague and undefined “concern” expressed

by “a counselor from East Junior High” about “some

behavior at the junior high,” but “not talking about

specifically marijuana,” he had no other information

about defendant or about defendant’s involvement with

marijuana. Officer Warsecke likewise testified that he

had no information about defendant or about defen-

dant’s involvement with drugs other than the anony-

mous tip.

Nevertheless, more than a week after receiving the

anonymous tip, VanderMolen decided to search de-

fendant’s vehicle. VanderMolen asked Officer War-

secke and some other school officials to accompany

him as he searched defendant’s vehicle. Defendant

did not consent to the search, although defendant was

present during the search. Officer Warsecke stood by

while the assistant principal conducted the search.

VanderMolen found marijuana in a bag behind a seat,

whereupon defendant was arrested. Defendant

moved to suppress that evidence as the fruit of an

2010] P

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171

PINION OF THE

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unconstitutional search. The trial court denied the

motion, finding that the anonymous tip alone was

sufficient to constitute reasonable suspicion, given

the level of detail the tip contained.

Evidence obtained in violation of a suspect’s rights

under the Fourth Amendment of the United States Con-

stitution is subject to suppression at trial. People v Cart-

wright, 454 Mich 550, 557-558; 563 NW2d 208 (1997). See

also Mapp v Ohio, 367 US 643; 81 S Ct 1684;6LEd2d

1081 (1961) (incorporating the Fourth Amendment

against the states under the Fourteenth Amendment). In

reviewing a trial court’s decision following a suppression

hearing, this Court reviews the trial court’s factual find-

ings for clear error, but reviews the legal conclusions de

novo. See People v Daoud, 462 Mich 621, 629-630; 614

NW2d 152 (2000).

The police may search a motor vehicle without a

warrant if they have probable cause to believe that

evidence of a crime may be found therein. People v

Kazmierczak, 461 Mich 411, 418-419; 605 NW2d 667

(2000). However, school officials may search a student’s

person or property on school premises on the lesser

standard of reasonable suspicion. See New Jersey v

TLO, 469 US 325, 341-342; 105 S Ct 733; 83 L Ed 2d

720 (1985). Defendant suggested in the trial court that

the presence of a police officer during the search might

raise the applicable standard, but because that argu-

ment was not raised on appeal, we do not express any

opinion thereon. In any event, it is unnecessary for us to

do so in light of our conclusions in this matter.

Where we part with the dissent for purposes of this analysis is the

dissent’s view, as reflected in footnote 2 of the dissenting opinion, that

there is no distinction or difference between possession of marijuana and

possession of a bomb or an assault weapon on school property.

172 287 M

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168 [Jan

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Reasonable suspicion requires “ ‘articulable rea-

sons’ ” and “a particularized and objective basis for

suspecting the particular person... ofcriminal activ-

ity.” United States v Cortez, 449 US 411, 417-418; 101 S

Ct 690; 66 L Ed 2d 621 (1981). In “a case involving an

anonymous tipster,” whether reasonable suspicion ex-

ists “must be tested under the totality of the circum-

stances with a view to the question whether the tip

carries with it sufficient indicia of reliability to support

a reasonable suspicion of criminal activity.” People v

Faucett, 442 Mich 153, 169; 499 NW2d 764 (1993)

(emphasis in original), citing Alabama v White, 496 US

325; 110 S Ct 2412; 110 L Ed 2d 301 (1990). An

anonymous tip can provide reasonable suspicion if it is

considered along with a “totality of the circumstances”

that show the tip to be reliable. But alone, without any

“ ‘indicia of reliability’ ” or “ ‘means to test the infor-

mant’s knowledge or credibility,’ ” an anonymous tip is

generally insufficient. People v Horton, 283 Mich App

105, 111-113; 767 NW2d 672 (2009), citing and quoting

FloridavJL, 529 US 266, 271-272, 274; 120 S Ct 1375;

146 L Ed 2d 254 (2000).

Here, the anonymous tip was the only basis for the

search. Both the assistant principal who conducted the

search and the police officer who attended the search

testified that the anonymous tip was the only basis for

the search.

The prosecution points out that the tip

During VanderMolen’s cross-examination at defendant’s preliminary

examination, the following exchange took place:

Q. Was there anything in particular that happened that day

that you picked that day to conduct the search?

A. No.

Q. So it wasn’t based upon any activity or information that you

had other than what was in the Silent Observer?

2010] P

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173

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provided considerable detail about one of the alleged

dealers, but that particular dealer was searched and

found not to have any contraband on his person. The

prosecution further argues that the tip is reliable be-

cause the tipster showed that he was well-intended and

reliable by professing to be motivated by one of the

alleged dealers’ selling to another friend and an ex-

girlfriend, and also because the tipster took care to

distinguish between a dealer and that dealer’s physi-

cally identical-looking brother. However, these are

merely assertions regarding the information contained

within the anonymous tip and therefore are not cor-

roborating circumstances. Furthermore, the anony-

mous tip contained little information concerning defen-

dant. Although the tip sheet states that defendant was

“[s]een” trafficking in marijuana, and specifies three

locations, it does not indicate whether the informant

had witnessed the trafficking or was relaying informa-

tion heard secondhand.

Therefore, the anonymous tip was vague concerning

defendant and could not be viewed with a “totality of

the circumstances” because there were no other cir-

cumstances. Indeed, the only other possible circum-

stance weighed against the tip’s being reliable. “Some

A. Yes.

***

Q. And you were searching his vehicle solely on the basis of the

information which you had from the Silent Observer?

A. Yes.

VanderMolen also stated that he had “no idea” who had called in the

anonymous tip or how reliable the information therein was. Officer

Warsecke testified that the only information he passed on to Vander-

Molen about defendant was the contents of the anonymous tip.

174 287 M

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tips, completely lacking in indicia of reliability, would

either warrant no police response or require further

investigation” before governmental authorities may act

against a suspect. White, supra at 329 (quotation marks

and citation omitted). This is an example of such a tip.

The tip alone did not provide a sufficient basis to form

reasonable suspicion necessary for the search of defen-

dant’s vehicle, and the search was based on nothing

more than the tip. The search was therefore unconsti-

tutional, and the trial court should have suppressed the

evidence as the fruit of an illegal search. See Wong Sun

v United States, 371 US 471, 487-488; 83 S Ct 407; 9 L

Ed 2d 441 (1963); Cartwright, supra.

Although it appears that the prosecution would not

be able to proceed without the evidence that should

have been suppressed, we decline to make that pre-

sumption conclusive. We express no view as to the

resolution of any other aspect of, or issue in, this case.

The trial court’s order denying suppression of the

evidence seized from defendant’s vehicle is reversed,

and the matter is remanded for further proceedings as

the trial court deems appropriate. We do not retain

jurisdiction.

ALBOT

,P.J., concurred.

O’C

ONNELL

,J.(dissenting). I respectfully dissent.

I would affirm the decision of the learned trial court.

The sole issue in this case is whether the assistant

principal at Traverse City Central High School had

reasonable suspicion that contraband would be found in

defendant’s truck. It is a well-accepted principle of law

that school officials may search a student’s person or

property on the school premises pursuant to the lesser

standard of “reasonable suspicion.” See New Jersey v

TLO, 469 US 325, 341-343; 105 S Ct 733; 83 L Ed 2d

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720 (1985). In People v Champion, 452 Mich 92, 98; 549

NW2d 849 (1996), our Supreme Court, citing United

States v Sokolow, 490 US 1; 109 S Ct 1581; 104 L Ed 2d

1 (1989), noted, “Reasonable suspicion entails some-

thing more than an inchoate or unparticularized suspi-

cion or ‘hunch,’ but less than the level of suspicion

required for probable cause.”

An anonymous tip can provide reasonable suspicion

if it is considered along with a “totality of the circum-

stances” that shows the tip to be reliable. People v

Faucett, 442 Mich 153, 169; 499 NW2d 764 (1993).

Further, the tip must carry with it sufficient indicia of

reliability to support a reasonable suspicion of criminal

activity. Id. However, a sufficiently detailed tip may

provide reasonable suspicion of criminal activity, espe-

cially (but not necessarily) when there is independent

corroboration of some of the facts. Id. at 170-172.

However, the police may only search a motor vehicle

without a warrant if they have probable cause to believe

that evidence of a crime may be found therein. People v

Kazmierczak, 461 Mich 411, 418-419; 605 NW2d 667

(2000). Taken together, this caselaw leads to one obvi-

ous conclusion: although probable cause is necessary to

permit a police search of a motor vehicle, a school

official only needs to have “reasonable suspicion” to

search a student’s motor vehicle when it is located on

the school premises.

In this case, Rick VanderMolen, the assistant princi-

pal at Traverse City Central High School, had been

provided with a detailed anonymous tip from the “Si-

lent Observer” program that implicated defendant in

drug trafficking. In this case, the only issue is whether

the anonymous tip, considered in light of the totality of

the circumstances, provided VanderMolen reasonable

suspicion that defendant was trafficking in drugs on

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school property and, consequently, justified his search

of defendant’s vehicle.

The trial court found that, on

the basis of the totality of the circumstances, the tip

provided sufficient indicia of reliability to support Van-

derMolen’s reasonable suspicion of criminal activity. I

agree.

The trial court explained why the totality of the

circumstances created a reasonable suspicion of crimi-

nal activity:

[W]ith respect to Mr. Perreault, [the report] indicates that

he traffics in marijuana. That the anonymous witness said

that they had seen him actually sell it and that he sells from

school, his truck and in East Bay Park in Traverse City.

Well, the truck—actually, I guess it was an S-10, was the

testimony—was parked in the parking lot of the Traverse

City Central [High] School. So, I guess, is that enough to

create a reasonable suspicion that—that Mr. Perreault may

be involved in drug dealing and that there might be

evidence in his truck when this anonymous report, which is

quite detailed, specifically says he sells from his truck. That

would seem to me to create a reasonable suspicion.

The trial court then distinguished the standard applied

to school officials from the probable cause requirement

for a search warrant, stating:

Now, if we’re talking about validating an affidavit for a

search warrant, it might require some corroboration in

order to make it sufficient to reach the level appropriate to

support a search warrant....[R]easonable suspicion is a

lesser standard.

A trial court’s factual findings in a ruling on a motion

to suppress evidence are reviewed for clear error, and

Defendant does not challenge on appeal the application of the

“reasonable suspicion” standard as the proper standard that must be met

to permit a school official to search a student’s vehicle located on school

grounds.

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the trial court’s interpretation of the law or application

of a constitutional standard is reviewed de novo. People

v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). In

this case, I cannot find any violation of the constitu-

tional standard, nor can I conclude that the trial court

committed clear error.

The tip named four students who were selling drugs

on school property. The tipster said that he was aware

that these four students were the “big sellers” at

Traverse City Central High School because the tipster

had previously been involved in drug activity and one of

the “big sellers,” a friend of the tipster, had begun

selling marijuana to the tipster’s friends and ex-

girlfriend. The tipster said that he had seen all four “big

sellers” selling drugs. The tipster warned that drugs

were being sold on school property and gave details of

how the drugs were being sold. The tipster indicated

that defendant “[s]ells from school, his truck and East

If the anonymous tip in question were a bomb threat or a claim that

a weapon was located in the defendant’s vehicle, I suspect that school

officials, most parents, and the majority in this case would conclude that

because of the imminent threat, exigent circumstances, and the threat of

harm to all students in the school, the tip alone would be enough to confer

“reasonable suspicion” and justify a search of a student’s vehicle. I would

also agree, but I see the aforementioned hypothetical as presenting a

distinction without a difference. In my opinion, the presence of drugs on

school property presents a similarly serious risk of harm to students that

parents, school officials, and this Court should not accept. More impor-

tantly, the standard that a school official would be permitted to apply in

order to justify a search, “reasonable suspicion,” is the same in both

situations. The standard does not change simply because the contraband

in question is viewed by some as “less threatening.”

On a separate note, some school districts have an official school policy

that grants school officials “implied consent” to search a student’s

property while that student or that student’s belongings are located on

school property. The lower court record is devoid of any evidence

regarding whether Traverse City Area Public Schools has such a contrac-

tual relationship with parents or students.

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Bade [sic, Bay] Park in Traverse City,” and indicated

that he had seen defendant sell marijuana.

The tipster

also noted that the drug trafficking that he was report-

ing was the largest threat to the school.

Admittedly, the tipster provided more detailed infor-

mation about one of the other “big sellers,” including

information that this “big seller” was suspected of

selling drugs to a freshman student and kept “a ma-

chete in the glove compartment of his blue Ford Ex-

plorer.” However, the tipster also provided identifying

information concerning the other “big sellers,” includ-

ing their names, their grades at school, and where they

sold drugs. In particular, the tipster specified that

defendant drove a truck and that another “big seller”

drove a GMC Yukon. I believe that the tip, considered in

its entirety, is sufficiently detailed to provide indicia of

The Silent Observer screener who took the tipster’s call filled out a tip

sheet listing information that she had solicited from the tipster. When

asking about defendant’s involvement in drug activity and receiving the

tipster’s responses, she recorded the following information:

DRUGS

Regarding: Trafficking Type: Marijuana Witnessed: Seen

This information indicates that when asked whether he had witnessed

the criminal activity, the tipster said that he had seen defendant

trafficking in marijuana. If the tipster was reporting this information

secondhand, I would reasonably assume that a trained call screener

would note that the information was secondhand on the tip sheet, and

not assume that recording the word “seen” would imply that this

information was secondhand. In addition, I note that when the call

screener recorded information about the “big seller” who was a friend of

the tipster and about whom the tipster had significant firsthand infor-

mation, she indicated that the tipster had “seen” him trafficking in

marijuana and ecstasy. I believe that this provides an additional indica-

tion that the call screener’s use of the word “seen” to fill in the category

“Witnessed” indicates that the tipster had admitted seeing these “big

sellers” engage in illegal activity firsthand.

2010] P

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,J.

reliability. I do not think that the majority’s conclusion

that “corroborating circumstances” outside the tip

must be present for an anonymous tip to be considered

reliable, no matter how detailed and internally consis-

tent the tip itself might be, is necessarily supported by

the prevailing caselaw.

Regardless, there was information corroborating this

tip, aiding in a determination that a reasonable suspicion

existed to search defendant’s vehicle. When Officer Evan

Warsecke, who served as a police liaison officer for the

school, initially received the “Silent Observer” report, he

verified that defendant and the seller with the GMC

Yukon drove the vehicles described and noted this on the

report. He also verified that another “big seller” who was

reported as not having a vehicle did not, in fact, have a

vehicle registered with the school. VanderMolen also in-

dependently knew that defendant drove a truck, as was

stated in the report, because defendant had driven a truck

recklessly in the parking lot earlier in the school year, and

VanderMolen had discussed this behavior with defendant

and his mother. Further, defendant’s name appeared to be

associated with some drug-related problems that were

occurring at a local junior high school. Finally, just before

VanderMolen began his search of the vehicle, he noted

that he could see a plastic bag, later found to contain

defendant’s marijuana and related drug-trafficking sup-

plies, through the truck window, although he could not

determine from outside the truck what was inside that

bag.

I believe that this information, taken together, was

sufficient to provide VanderMolen a “reasonable suspi-

cion” that defendant was engaged in illegal activity on

school grounds and to authorize his search of defendant’s

truck. Not only was the tip quite detailed and internally

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consistent, indicating its trustworthiness,

but informa-

tion in the tip was also corroborated.

VanderMolen did

not search defendant’s truck because he had a “hunch”

that contraband might be found therein. Instead, the

tip and corroborating information provided Vander-

Molen with a particularized suspicion that defendant

was engaging in criminal activity in his truck on school

grounds, and that contraband was present in the truck.

Accordingly, the tip carried with it sufficient indicia of

reliability to support a reasonable suspicion of criminal

activity, and VanderMolen’s search did not constitute a

violation of defendant’s rights.

Defendant also indicates in his brief on appeal that the

tipster likely did not report on defendant’s wrongdoing

because he had a vendetta against defendant. Instead,

defendant claims that the tipster primarily wished to turn

in his friend, and his revelation that defendant was also

involved in drug dealing was “merely an afterthought that

the tipster had no intention of revealing until making the

call.” This description of the tipster’s statements regard-

ing defendant as being a “mere afterthought” undermines

the notion that the tipster might have wished to falsely

accuse defendant of wrongdoing and, serendipitously, pro-

vides an additional indication, based on the totality of the

circumstances, that the tipster’s information concerning

defendant was valid and that VanderMolen had a reason-

able suspicion to search defendant’s vehicle.

It is well established that inconsistencies in an individual’s statement

can often indicate that the statement is false. There is no such indication

of inconsistencies in this anonymous tip.

VanderMolen also appropriately chose to search defendant’s truck, as

opposed to defendant’s person or locker, because as indicated in the tip,

the truck was the locus of the criminal activity and, hence, the source of

danger to the school.

It appears, instead, that the tipster provided all the information he

could on these other “big sellers” and lacked a motivation to lie when

2010] P

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,J.

In some ways, I find this case to be analogous to

People v Goforth, 222 Mich App 306; 564 NW2d 526

(1997), and the doctrine of in loco parentis.InGoforth,

the defendant claimed that his parents did not have the

legal right to allow the police to search his bedroom in

his parents’ house, where evidence of marijuana traf-

ficking activity was found, because he had “a legitimate

expectation of privacy” in his bedroom. Id. at 308. This

Court concluded that there is no absolute rule preclud-

ing parents from validly waiving their child’s privilege

against an unreasonable search of the child’s bedroom

in the parents’ home, and concluded that the facts of

the case indicated that an officer could reasonably

believe that the defendant’s mother had common au-

thority over the defendant’s bedroom and could consent

to the search. Id. at 315-316. In a separate concurrence,

I noted, “excepting the most unusual of situations, a

parent always has the right to consent to the search of

the bedroom of a child residing with that parent.” Id. at

317 (O’C

ONNELL

, J., concurring). The parent, not the

child, is in charge of the household; the child is not in

charge of the parent.

A similar relationship exists with schools. School

administrators act in loco parentis

with students, and

“[s]chools... are provided a tremendous measure of

doing so. Of course, the presence of marijuana and related trafficking

supplies in defendant’s truck proves the tipster’s statement correct.

In loco parentis is Latin for “ ‘in the place of a parent’ ” and is defined

as “[o]f, relating to, or acting as a temporary guardian or caretaker of a

child, taking on all or some of the responsibilities of a parent.” Black’s

Law Dictionary (8th ed). “The [United States] Supreme Court has

recognized that during the school day, a teacher or administrator may act

in loco parentis. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 115 S.Ct.

2386 (1995).” Id. A “person in loco parentis” is defined as “[a] person who

acts in place of a parent, either temporarily (as a schoolteacher does) or

indefinitely (as a stepparent does); a person who has assumed the

obligations of a parent without formally adopting the child.” Id.

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authority because of their responsibilities in loco

parentis ....”Baker v Couchman, 271 Mich App 174,

203; 721 NW2d 251 (2006) (O’C

ONNELL

, J., concurring

in part and dissenting in part), rev’d 477 Mich 1097

(2007) (adopting the partial dissent of O’C

ONNELL

, J.).

Admittedly, the doctrine of in loco parentis does not

obviate all of a student’s Fourth Amendment protec-

tions in a public school setting. TLO, supra at 336-337.

Yet the doctrine helps illustrate the tension placed on

school administrators, who must balance their limita-

tions as public employees with their responsibilities to

protect students from the myriad increasingly dire

threats facing young people today.

Although it is a

delicate balance between preserving order in the school

and safeguarding a student’s individual rights, this case

does not present a close question. Students know that

drugs, weapons, and contraband are not permitted on

school grounds. Bringing these items onto school prop-

erty is simply an unacceptable practice in our society

and at our schools.

School officials have a responsibility

to police the school and create a safe environment for all

students, and in this case, VanderMolen performed his

duty admirably. He had a reasonable suspicion that

defendant was undermining the health and safety of the

student body by trafficking marijuana on school

grounds. VanderMolen, acting within the confines of

the law, did what was necessary to protect the students

of Traverse City Central High School from a drug

dealer. His actions and diligence should be applauded.

Perhaps it is not coincidental that the traditional in loco parentis

standard applied in public schools was weakened just as drugs and

violence began their ascendancy as major threats within our schools. See

TLO, supra.

Many schools even post signs in their student parking lots to this

effect.

2010] P

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,J.

WOLF v CITY OF DETROIT

Docket No. 279853. Argued February 5, 2009, at Lansing. Decided

January 21, 2010, at 9:00 a.m.

Laurence G. Wolf, doing business as Lawrence Wolf Properties,

brought an original action in the Court of Appeals against the city

of Detroit, seeking a declaration that the solid waste inspection fee

charged by the city to the owners of commercial and industrial

properties who do not contract with the city for solid waste

removal services constitutes a tax that violates Const 1963, art 9,

§ 31 of the Headlee Amendment, because it was imposed without

a vote of the city’s electorate. The city responded, contending that

the inspection charge is a valid regulatory fee that has the purpose

of making sure that the owners of commercial and industrial

properties make arrangements for trash disposal service at a level

appropriate to handle the solid waste generated on the properties.

Plaintiff moved for summary disposition.

The Court of Appeals held:

1. A “tax” is designed to raise revenue, while, in general, a

“fee” is exchanged for a service rendered or a benefit conferred and

some reasonable relationship exists between the amount of the fee

and the value of the service or benefit.

2. The three criteria for a “fee” are that a fee serves a

regulatory purpose, is proportionate to the necessary costs of the

service, and is voluntary. The three criteria are not to be consid-

ered in isolation, but are to be considered in their totality, so that

a weakness in one area does not necessarily mandate a finding that

the charge at issue is not a fee. Additional considerations when

evaluating these three criteria for a fee include: whether the

charge constitutes an investment in infrastructure; whether the

charge simply defrays the cost of a regulatory activity; whether the

charge reflects the actual cost of use, metered with relative

precision in accordance with available technology, including some

capital investment component; whether the charge corresponds to

the benefits conferred; whether the charge applies only to those

property owners who will enjoy the full benefits of the new

construction or applies to all property owners; whether the ordi-

nance imposing the charge lacks a significant element of regula-

tion; whether the payment of the charge is compulsory only for

184 287 M

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184 [Jan

those who use the service; whether the users of the service have

the ability to choose how much of the service to use or whether to

use the service at all; whether the charge raises revenue to replace

a portion of a program that was previously funded by a govern-

ment’s general fund; whether the charge may be secured by the

imposition of a lien; and whether the charge is billed through a

governmental unit’s assessor’s office and is mailed with property

tax statements.

3. The solid waste inspection fee satisfies the first criterion

because it serves the regulatory purposes of enabling the city to

inspect commercial and industrial properties to make sure that

they have made arrangements for trash disposal service, whether

it is a private contractor or the city, as well as to ensure that each

business has an appropriate level of solid waste collection service.

The fee satisfies the regulatory purposes of ensuring the efficient

removal of solid waste products and protecting the public by

reducing blight and illegal dumping.

4. The manner in which the city implements the inspection

process supports the conclusion that the fee serves a regulatory

purpose. The continuing reduction of the amount of the fee

charged as the city refines the inspection process contradicts the

notion that the city imposed the fee solely for the purpose of

enhancing the city’s revenue stream.

5. The inference that may be drawn from the city’s failure to

complete each inspection required in the 2007-2008 fiscal year,

that the city launched the inspection program before it had worked

out the details of the process, does not support a conclusion that

the city intended the fee solely to generate revenue.

6. The fact that the fee generates revenue for the city’s

Department of Public Works does not establish that it is a tax. A

regulatory fee can have dual purposes and still maintain its

regulatory character. As long as the primary purpose of a fee is

regulatory in nature, the fee can also raise money provided that it

is in support of the underlying regulatory purpose. The solid waste

inspection fee generates revenue in support of an underlying

regulatory purpose.

7. The Court of Appeals must presume that the amount of the

fee is reasonable, unless the contrary appears on the face of the law

itself or is established by proper evidence. The evidence shows that

any disproportionality in the fees charged by the city to the

services provided resulted from the city’s lack of preparedness to

implement the inspection process, not an intent by the city to

generate a revenue stream outside its taxing power by subterfuge.

2010] W

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185

8. The evidence establishes that the fee is voluntary and this

suggests that the fee is not a disguised tax.

9. The mere facts that the city bills the fee on the property

owner’s tax bill and may place a lien on the property owner’s

parcel in the amount of the fee do not transform an otherwise

proper fee into a tax.

10. Plaintiff’s motion for summary disposition must be denied

and summary disposition must be granted in favor of defendant.

Summary disposition granted in favor of defendant.

1. T

AXATION —

ORDS AND

HRASES —

AXES —

EES

A “tax” is designed to raise revenue, while a “fee” generally is

exchanged for a service rendered or a benefit conferred and some

reasonable relationship exists between the amount of the fee and

the value of the service or benefit.

2. T

AXATION —

EES —

RIMARY

RITERIA

The three primary criteria to be considered when distinguishing

between a fee and a tax is that a fee serves a regulatory purpose

rather than a revenue-raising purpose, a fee is proportionate to the

necessary costs of the service rendered or benefit conferred in

exchange for the fee, and a fee is voluntary; the criteria are to be

considered in their totality, not in isolation, so that a weakness in

one area does not necessarily mandate a finding that the charge at

issue is not a fee.

3. T

AXATION —

EES —

EGULATORY

EES

A regulatory fee can have dual purposes and still maintain its

regulatory character; as long as the primary purpose of the fee is

regulatory in nature, it can also raise money if it is in support of

the regulatory purpose.

Kickham Hanley PLLC (by Gregory D. Hanley and

Timothy O. McMahon) for plaintiff.

Krystal A. Crittenton, Corporation Counsel, and

James Noseda and Joanne D. Stafford for the city of

Detroit.

Before: W

HITBECK

,P.J., and B

ORRELLO

and S

ERVITTO

JJ.

186 287 M

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184 [Jan

URIAM

. In this original action,

plaintiff, Lau-

rence G. Wolf, doing business as Laurence Wolf Proper-

ties (Wolf), seeks a declaration that a new solid waste

inspection fee charged by the city of Detroit to the

owners of certain commercial and industrial properties

constitutes a disguised tax. Wolf asserts that if the new

solid waste inspection fee is a disguised tax, then it

violates § 31

of the Michigan Constitution’s Headlee

Amendment

because the city imposed the tax without

a vote of its electorate. Applying the criteria that the

Michigan Supreme Court established in Bolt v City of

Lansing,

we conclude that the inspection charge is a

valid regulatory fee, not a disguised tax.

I. BASIC FACTS AND PROCEDURAL HISTORY

A. THE CREATION AND IMPLEMENTATION

OF THE NEW SOLID WASTE INSPECTION FEE

Chapter 22 of the Detroit City Code governs all

aspects of the handling of solid waste generated at all

residential and commercial property within the city, as

well as blight prevention. Its provisions, as stated in

§ 22-2-1, are intended to provide “a sanitary and satis-

factory method of storage, preparation, collection,

transport, disposal and placement of municipal solid

waste, and for the maintenance of public and private

property in a clean, orderly, and sanitary condition to

ensure the peace, health, safety, and welfare of the

People of the City of Detroit.” The code prohibits “any

person” other than the employees of the city’s Depart-

ment of Public Works or private waste collectors li-

See MCL 600.308a.

Const 1963, art 9, § 31.

Const 1963, art 9, §§ 25-34.

Bolt v City of Lansing, 459 Mich 152, 154, 158-159; 587 NW2d 264

(1998).

2010] W

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187

censed by the city from removing solid waste from

private and commercial properties within the city. Al-

though the code charges the Department of Public

Works with the overall responsibility for solid waste

collection and disposal within the city, a reorganization

plan that the Detroit City Council approved in 2002

reassigns the inspectors responsible for enforcing the

provisions of Chapter 22 of the Detroit City Code from

the Department of Public Works to the city’s Depart-

ment of Environmental Affairs. Thus, the Department

of Public Works is to verify which property owners

receive solid waste collection services from the city. But

the Department of Environmental Affairs carries out

the inspections.

Before the June 30, 2006 enactment of the ordi-

nance at issue,

the city collected a three-mill tax levied

on commercial businesses and apartment buildings

containing more than five units to finance a portion of

its solid waste collection, disposal, and inspection op-

erations. This millage generated $8 million in revenue.

The city discontinued its reliance on the three-mill tax

with the 2007-2008 fiscal year budget. It did so, accord-

ing to the city, because it “could not continue to provide

free residential trash services paid for solely by taxes

and by an even greater amount of general fund monies,

and fully fund other essential services....” The city

replaced the revenues generated by the three-mill tax

with revenues from the commercial solid waste collec-

tion and disposal funds generated by a $300 annual fee

for the Department of Public Works’ residential trash

collection service for each residence, and by the new

solid waste inspection fee that is at issue in this case.

To implement the switch from the millage-

generated revenue to the fee-generated revenue, the

Detroit City Code, § 22-2-56.

188 287 M

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Detroit City Council passed Ordinance 18-06 on June

30, 2006. This ordinance amended various ordinances

within Chapter 22 of the Detroit City Code. Specifi-

cally, § 22-2-56 of the Detroit City Code authorized

the new solid waste inspection fee and provided, in

pertinent part:

Public Works with the approval of City Council, may

develop a schedule of fees for services including, but not

limited to, inspections to ensure compliance with this

section and for other services provided, exclusive of the

rates charged for regular collection of commercial solid

waste.

The purpose of this fee was to “ensure proper solid

waste removal services exist.”

At the time of the revenue source switch, the city

estimated that the new solid waste inspection fee, in

conjunction with the updated commercial waste collec-

tion and disposal charges, would generate $12.5 million

in revenue for the city. With the revenue generated

from the $300 annual residential trash collection fee,

the new solid waste inspection fee, and the commercial

solid waste charges, the city projected that it would

collect approximately $74 million. This would, the city

projected, save the city’s general fund approximately

$47 million.

The Detroit City Counsel later amended § 22-2-56(c),

with the passage of Ordinance 23-07 to add the

phrase “and industrial site solid waste” to the end of

subsection (c). The purpose of these amendments was

to authorize the city to impose an inspection fee for

the inspection of commercial and industrial proper-

ties “to make sure they have made arrangements for

trash disposal service, whether it is a private contrac-

tor or the City.” Another purpose was to ensure that

2010] W

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“every business has an appropriate level of [solid

waste collection] service” based on the amount of

solid waste generated onsite.

On May 10, 2007, Pamela C. Scales, then budget

director for the city, submitted a proposed schedule to

the Detroit City Council of commercial solid waste

inspections fees to be imposed pursuant to § 22-2-56(c).

Scales proposed that the city charge an annual inspec-

tion fee of $250 to commercial properties of 10,000 or

less square feet, $500 to commercial properties between

10,001 and 49,999 square feet, and $1,000 to commer-

cial properties 50,000 or more square feet. The rates

were varied to reflect the “additional effort involved in

inspecting businesses of various size and type.” Accord-

ing to Scales,

[t]he schedule...hadbeen developed th[r]ough meetings

of a committee comprised of myself and personnel from the

DPW, the Budget Department, the Finance Department’s

Treasury and Assessor divisions, and the Law Department.

During that process, the City had not had the full oppor-

tunity to determine the all [sic] activity that would be

required by the new and pro-active inspection program

that the City sought to implement as of July 1, 2007, nor

the costs of doing so.

Accordingly, these fee amounts reflected mere estimates

of the costs of performing the inspections. The Detroit

City Council approved Scales’ proposed fee schedule on

May 23, 2007.

Following the City Council’s approval of the proposed

fee schedule, and upon advice of legal counsel, Scales

undertook a cost analysis in an effort to forecast the

costs to be incurred in association with the inspections.

She prepared a series of costs analyses between May 25,

2007, and June 26, 2007. Those analyses purportedly

reflect the direct and indirect personnel and overhead

190 287 M

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184 [Jan

costs associated with the verification and inspection

process. They contain a projected cost of $268.48 for

each commercial property of 10,000 square feet or less,

a projected cost of $321.72 for each commercial prop-

erty of 10,001 to 49,999 square feet, and a projected cost

of $476.30 for each commercial property of 50,000 or

more square feet. In July 2007, the Detroit City Council

approved the commercial solid waste inspection fee

schedule, retaining the annual inspection $250 fee for

properties of 10,000 or less square feet, but reducing the

$500 fee for properties of between 10,001 and 49,999

square feet to $325, and the $1,000 fee for properties of

50,000 or more square feet to $475. According to Scales,

she provided this adjusted fee schedule to the city

treasurer and it was used for billing the fees on the

summer tax statement.

Initially, and before the inspection process was imple-

mented, there was considerable confusion regarding

whether the inspection fee would be charged only to

commercial property owners who do not contract with

the Department of Public Works for waste removal

service or whether the fee would be charged to all

commercial properties regardless of whether the prop-

erty owners contracted with Department of Public

Works or a licensed private waste collector for solid

waste removal services. On the one hand, Scales sub-

mitted a report to the Detroit City Council indicating

that the inspection fee “will allow DPW to verify proof

of service by requiring paid annual contracts with

private collectors and ensure that the level of service is

sufficient for the business.” Moreover, the Detroit City

Council adopted a resolution that approved the inspec-

tion fee schedule and which begins: “This Fee is [sic]

Commercial and Residential Properties that opt out of

the City of Detroit Department of Public Works Solid

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Waste Pick up and Disposal Service. Proof of service

with a licensed private solid waste collector is re-

quired.”

On the other hand, a letter from the director of the

city’s Department of Public Works, dated July 21, 2007,

and employing the salutation “Dear Property Owner,”

contradicted the city’s representation that the fee re-

lated only to those property owners who do not have a

contract with the city for waste removal services. The

letter provides, in part:

Starting this fiscal year (2007-2008), and continuing on

an annual basis, the city will require property owners to

provide proof of service with either the Department of

Public Works or an approved private contractor for solid

waste removal.

If you already utilize the Department of Public Works

for your solid waste services, this inspection fee is included

in the contract amount. If you utilize a private contractor,

you will be receiving this annual billing for the first time.

Copies of non-DPW garbage service contracts should be

presented to the Department of Public Works administra-

tive office within 30 days of this billing.

Further, then-Detroit Mayor Kwame Kilpatrick’s re-

marks to the Detroit City Council during his presenta-

tion of the proposed 2007-2008 city budget also cast

confusion on the question whether the new solid waste

inspection fee applied to all commercial properties.

Those remarks are as follows:

By ordinance, DPW is required to verify that every

business that does not use DPW has an appropriate level

of solid waste service provided by a licensed contractor.

This budget also institutes an inspection fee for all

businesses to make sure they have made arrangements

for trash disposal service, whether it is a private contrac-

tor or the City.

192 287 M

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184 [Jan

The fee is minimal.... It will pay for the cost of

conducting inspections to make sure every business has an

appropriate level of service. Every business operating in

this city has a responsibility to take care of its own trash.

This inspection program is designed to make sure that

happens.

Once the inspection process was implemented, the

city charged an inspection fee to only the owners of

commercial and industrial property that contracted

with licensed private solid waste collectors for solid

waste collection and disposal services. The city

charged the owners of commercial and industrial

property under contract with the Department of

Public Works for solid waste collection and disposal

service only the service fees identified on the Depart-

ment of Public Works’ published solid waste collec-

tion rates. The city charged no inspection fee to

commercial or industrial customers of the Depart-

ment of Public Works.

According to Scales, the city charged a commercial

solid waste inspection fee to 15,731 owners of com-

mercial or industrial property within the city. “Of

that total number of non-Department of Public

Works accounts, 12,451 properties were billed

$250.00 (79.15%); 2,517 were billed $325.00 (16%),

and 763 were billed $475.00 (4.85%). The total

amount billed for the solid waste compliance inspec-

tions was $4,293,200.00.” Scales indicated that “[a]ll

revenue collected by the fee charged for the inspec-

tion of those properties which do not elect to use

DPW waste collection service is allocated in the City

Budget to the Solid Waste Section” of the Department

of Public Works. The following chart illustrates the

various actions that the city took with respect to the

new solid waste inspection fee.

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193

Fees/

Costs

Pre-

6/06

6/30/06 5/10/07 5/23/07 5/07-

6/07

7/07 2007-

2009

09/10

City

col-

lects

3-mill

tax

City

autho-

rizes

new

Solid

Waste

In-

spec-

tion

Fee

Scales

pro-

poses

new

fee

sched-

ule

City

ap-

proves

pro-

posed

fee

sched-

ule

Scales

projects

costs.

City

ap-

proves

new

fee

sched-

ule.

City

imple-

ments

new

Solid

Waste

Inspec-

tion

Fee

City

in-

tends

imple-

ment

$200

flat fee

10k

less

$250 $250 $268.48 $250 $250

10,001

—

49,999

$500 $500 $321.72 $325 $325

50k

$1,000 $1,000 $476.30 $475 $475

B. WOLF

Wolf owns three parcels of commercial real prop-

erty located within the city of Detroit and, allegedly,

the city has charged him a solid waste inspection fee

for each parcel, pursuant to § 22-2-56 of the Detroit

City Code. On July 24, 2007, Wolf received a property

tax and fees billing from the city for his property

located at 5700 Woodward Avenue. The total billed

includes a $475 charge for the solid waste inspection

fee, despite the fact that Wolf contracts with the

Department of Public Works for solid waste collection

and disposal service for that property. That same day,

Wolf received a similar billing for his property located

at 120 Glynn Ct. That billing reflects only a “Solid

194 287 M

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184 [Jan

Waste Fee” of $3,000. Two days later, on July 26,

2007, Wolf received a property tax and fees billing

from the city for his property located at 100 Glynn Ct.

That billing likewise reflects only a “Solid Waste Fee”

of $3,000. The city asserts that the latter two billings

did not bill for the inspection fee. According to Wolf,

however, the latter two billings did include the in-

spection fee. He paid all the inspection fees under

protest. The latter two billings appear to be consis-

tent with the fee charged by the Department of Public

Works for solid waste collection and disposal services

associated only with the use of four 400-gallon con-

tainers.

On August 9, 2007, Wolf commenced this original

action in this Court with the filing of a complaint

seeking declaratory relief, a damages award, and other

relief. Wolf sought a declaration that the inspection fee

constitutes a disguised tax and, therefore, the fee’s

imposition violates § 31 of the Headlee Amendment

because the city imposed the tax without a vote of the

city’s electorate. Wolf also sought class certification.

By letter dated June 13, 2008, the city notified Wolf

that an audit revealed that the city had erroneously

charged Wolf an inspection fee for his property located

at 5700 Woodward Avenue. The city stated that the

“property has a Commercial Refuse Account with the

City of Detroit..., and has been receiving weekly

refuse collection services utilizing nine (9) — 400 gallon

containers.” The city further notified Wolf that it

should have charged Wolf a solid waste collection fee of

$6,500. The city then indicated that the city had cred-

ited the $475 fee paid against the solid waste collection

fee owed and directed Wolf to “promptly remit $6025.00

in payment of the balance due for refuse collection for

fiscal year 2007.”

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II. FEE OR TAX

A. STANDARD OF REVIEW

Wolf commenced this action, in part, for a declaratory

judgment. “The purpose of a declaratory judgment is to

enable the parties to obtain adjudication of rights

before an actual injury occurs....”

The plaintiff in a

declaratory judgment action bears “the burden of es-

tablishing the existence of an actual controversy, as well

as the burden of showing that...ithasactually been

injured or that the threat of imminent injury exists.”

Following various pleadings and motions, Wolf moved

for summary disposition under MCR 2.116(C)(10), argu-

ing that there is no genuine issue of material fact that the

new solid waste inspection fee is an improperly imposed

tax.

Under MCR 2.116(C)(10), a party may move for sum-

mary disposition on the ground that there is no genuine

issue with respect to any material fact and the moving

party is entitled to judgment as a matter of law. The

moving party must specifically identify the undisputed

factual issues and support its position with documentary

evidence.

We must consider all the documentary evi-

dence in the light most favorable to the nonmoving

party.

B. THE PARTIES’ POSITIONS

Wolf claims that the new solid waste inspection fee

has all relevant indicia of a tax. He asserts that: (1) the

Rose v State Farm Mut Auto Ins Co, 274 Mich App 291, 294; 732

NW2d 160 (2007).

22A Am Jur 2d, Declaratory Judgments, § 239, p 788.

MCR 2.116(G)(3)(b) and (4); Maiden v Rozwood, 461 Mich 109, 120;

597 NW2d 817 (1999).

MCR 2.116(G)(5); Maiden, 461 Mich at 120.

196 287 M

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184 [Jan

fee has no relation to any service or benefit actually

received by the taxpayer; (2) the amount of the fee has

no relation to the cost incurred by the city in perform-

ing any service; (3) the fee is nothing more than a

mechanism designed to generate revenue that the city

is not obtaining from its waste collection charges, not to

fund commercial solid waste inspection services; (4) the

payor of the fee benefits in no manner distinct from any

other taxpayer; (5) the fee is not voluntary, but manda-

tory; (6) the fee in not paid because of a use of service

but because of a status as a property owner; and (7)

failure to pay the fee can result in the city placing a lien

on the subject property.

The city argues that the new solid waste inspection

fee does not constitute a disguised tax. According to the

city, the Detroit City Council authorized the fee for a

regulatory purpose; that is, the ensuring of efficient

removal of solid waste from commercial generators of

waste and to protect the public health. Therefore, the

city maintains, the inspection for which it charges the

fee is a component of a comprehensive regulatory

program that the city has implemented to ensure the

safe and efficient collection and removal of solid waste

from generation sites to licensed disposal sites.

The city points out that, although the new solid

waste inspection fee will generate revenue, it will use

the funds that the fee generates to defray the costs of

executing and maintaining a regulatory program.

Therefore, the city asserts, one must presume that the

fee is proportionate to those costs. The city states that

the fee will not generate revenue for the general fund

and does not replace a tax. The city admits that the fee

provides some benefit to the general public: protection

of the public health. But, the city argues, the fee also

benefits the fee payer by permitting the property owner

2010] W

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to use private refuse collection companies and by guar-

anteeing that the property owner will comply with the

city’s solid waste collection and disposal requirements.

Thereby, the city asserts, the fee payer will avoid a

blight citation, legal proceedings, and a civil fine. The

city also asserts that the fee payer will benefit from an

increase in the value of its property because its property

will not become blighted.

The city also notes that the new solid waste inspec-

tion fee is voluntary because a property owner may

escape the fee by contracting with the city for solid

waste disposal services. As the city points out, although

the prebilling correspondence that Wolf received from

the city was confusing, in fact the city did not charge

him an inspection fee for the two properties that the

Department of Public Works services.

C. THE HEADLEE AMENDMENT

Const 1963, art 9, § 31 provides, in relevant part:

Units of Local Government are hereby prohibited from

levying any tax not authorized by law or charter when this

section is ratified or from increasing the rate of an existing tax

above the rate authorized by law or charter when this section

is ratified, without the approval of a majority of the qualified

electors of that unit of Local Government voting thereon.

The levying of a tax or an increase in the tax rate

higher than that authorized by law at the time of the

Headlee Amendment’s adoption triggers application of

this section of the Headlee Amendment.

The amend-

ment invalidates either action unless the local unit of

government secures voter approval.

However, a unit of

Bolt, 459 Mich at 154, 158-159; Saginaw Co v Buena Vista Sch Dist,

196 Mich App 363, 366; 493 NW2d 437 (1992).

Const 1963, art 9, § 31.

198 287 M

ICH

184 [Jan

local government may institute a fee without violating

the Headlee Amendment. Rather than being an exercise

of the municipality’s power to tax, the imposition of a

fee constitutes an exercise of the municipality’s police

power to regulate public health, safety, and welfare.

D. THE BOLT INTERPRETATION

The Michigan Supreme Court addressed the distinc-

tion between a fee and a tax in Bolt v City of Lansing.

The Court explained the distinction as follows: “Gener-

ally, a ‘fee’ is ‘exchanged for a service rendered or a

benefit conferred, and some reasonable relationship

exists between the amount of the fee and the value of

the service or benefit.’ A ‘tax,’ on the other hand, is

designed to raise revenue.”

The Court further identi-

fied the three criteria for a fee as follows: (1) a fee serves

a regulatory purpose, (2) a fee is proportionate to the

necessary costs of that service, and (3) a fee is volun-

tary.

“[T]hese criteria are not to be considered in

isolation, but rather in their totality, such that a weak-

ness in one area would not necessarily mandate a

finding that the charge at issue is not a fee.”

Moreover, when evaluating these criteria, a court

should consider whether the charge constitutes an

investment in infrastructure;

whether the charge sim-

ply defrays the cost of a regulatory activity; whether the

charge reflects the actual cost of use, metered with

relative precision in accordance with available technol-

Bolt, 459 Mich at 159; Merrelli v St Clair Shores, 355 Mich 575, 583;

96 NW2d 144 (1959).

Bolt, 459 Mich at 161 (citations omitted).

Id. at 161-162.

Graham v Kochville Twp, 236 Mich App 141, 151; 599 NW2d 793

(1999); see also Bolt, 459 Mich at 167 n 16.

Bolt, 459 Mich at 163.

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ogy, including some capital investment component;

whether the charge corresponds to the benefits con-

ferred; whether the charge applies only to those prop-

erty owners who will enjoy the full benefits of the new

construction or applies to all property owners; whether

the ordinance imposing the charge lacks a significant

element of regulation;

whether the payment of the

charge is compulsory only for those who use the service;

whether the users of the service have the ability to

choose how much of the service to use; whether the

users of the service have the ability to decide whether to

use the service at all; whether the charge raises revenue

to replace a portion of a program that was previously

funded by a government’s general fund;

whether the

charge may be secured by the imposition of a lien; and

whether the charge is billed through a governmental

unit’s assessor’s office and is mailed with property tax

statements.

E. APPLYING THE BOLT STANDARDS

(1) REGULATORY VERSUS REVENUE-RAISING PURPOSE

The new solid waste inspection fee authorized by

§ 22-2-56 of the city’s code satisfies the first fee crite-

rion because it serves a regulatory purpose. The provi-

sions of Chapter 22 of the Detroit City Code are

intended to establish “a sanitary and satisfactory

method of storage, preparation, collection, transport,

disposal and placement of municipal solid waste, and

for the maintenance of public and private property in a

clean, orderly, and sanitary condition to ensure the

Id. at 165.

Id. at 167.

Id. at 168.

Id. at 169.

200 287 M

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184 [Jan

peace, health, safety, and welfare of the People of the

City of Detroit.” The purpose of the code amendment at

issue is to allow the city to impose an inspection fee to

enable it to inspect commercial and industrial proper-

ties “to make sure they have made arrangements for

trash disposal service, whether it is a private contractor

or the City,” as well as to ensure that “every business

has an appropriate level of [solid waste collection]

service.” The imposition of the fee allows for inspec-

tions that further both purposes expressed in Chapter

22, and, in so doing, bolsters the contention that the fee

serves and furthers a regulatory purpose; that is, to

ensure the efficient removal of solid waste products and

to protect the public health by reducing blight and

illegal dumping.

Further, the manner in which the city implements

the inspection process supports the conclusion that the

fee serves a regulatory purpose. The city detailed this

process in its answer to Wolf’s interrogatory number 2

as follows:

The inspection at issue is made for determine [sic]

compliance with Chapter 22 of the Detroit City Code. The

inspection involves two components. The first component

is verification by personnel of the Department of Public

Works (DPW) that a property owner has a contract for

service with a licensed private solid waste collector. The

second component is an inspection of the subject premises

by an Environmental Control Inspector (ECI) with the

Department of Environmental Affairs (DEA). Among the

activity encompassed by an inspection, as provided by City

Code Chapter 22, the inspector may request the owner to

provide documented proof of private solid waste service;

determine whether the level of service being provided by

Wheeler v Shelby Charter Twp, 265 Mich App 657, 665; 697 NW2d

180 (2005); Peninsula Sanitation, Inc v Manistique, 208 Mich App 34,

40-41; 526 NW2d 607 (1994).

2010] W

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201

the private waste collector is sufficient, determine whether

approved solid waste containers are present, identified and

labeled, determine whether the solid waste containers are

adequate in number, type, and size, determine whether

solid waste containers are lawfully located; determine

whether portable containers are located in loading and

unloading areas, parking lots, construction and demolition

sites, and significant pedestrian areas as may be required;

determine whether solid waste is properly stored and

separated; and determine whether there are no defective or

unapproved containers. The inspector may issue one or

more blight violations notices under the Solid Waste and

Illegal Dumping provisions of the City Code.

We note that the city reduced the $500 fee for

properties of between 10,001 and 49,999 square feet to

$325, and the $1,000 fee for properties of 50,000 or

more square feet to $475 after Scales performed her

cost analysis. We further note that the city intends to

reduce the inspection fee to $200 for each parcel,

regardless of the size of the parcel to be inspected,

beginning in fiscal year 2009-2010. These actions sup-

port the conclusion that the fees further a regulatory

purpose, as opposed to merely a revenue generating

purpose. The continuing reduction of the fee charged as

the city refines the inspection process contradicts the

notion that the city imposed the fee solely for the

purpose of enhancing the city’s revenue stream.

Wolf asserts that “[t]he City’s failure to complete the

inspections [for the 2007-2008 fiscal year] is further

support for [his] contention that the City never in-

tended to conduct all of the inspections and that the

Inspection Fees were never intended to cover the actual

costs of such inspection but rather were borne of a

desire to assist the City in reducing its general overall

deficit.” Wolf correctly observes that the evidence gen-

erated clearly established that the city failed to inspect

all the properties it was required to inspect during fiscal

202 287 M

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184 [Jan

year 2007-2008. The city failed to inspect either 2,113

or 2,361 tax-exempt properties that it had charged an

inspection fee for the 2007-2008 fiscal year. Further, a

review of the inspection reports that the inspectors

generated during fiscal year 2007-2008, and that the

city provided to Wolf for inspection, reveals that the

Department of Environmental Affairs has no inspection

reports for 2,824 taxable properties. The city concedes

that it failed to inspect at least 2,113 tax-exempt

properties that it assessed an inspection fee for fiscal

year 2007-2008.

Thus, there is no question that the city failed to

inspect all the properties that the ordinance required it

to inspect during fiscal year 2007-2008. Wolf incorrectly

infers that the city never intended to inspect all the

properties that it charged a fee. From this inference,

Wolf argues that the city imposed the fee solely to

garner revenue. But the evidence does not support

Wolf’s inferences. The fact that the Department of

Environmental Affairs initially believed that it would

be inspecting between 500 and 5,000 properties

stemmed from the lack of an accurate understanding by

the Department of Environmental Affairs and the city

of the number of inspections that the Department of

Environmental Affairs would have to perform on an

annual basis. It also reflects institutional lethargy in

the accurate identification of properties requiring in-

spection and the provision of this information to the

Department of Environmental Affairs.

It is certainly true that the Department of Environ-

mental Affairs failed to inspect each property that the

city charged an inspection fee for the 2007-2008 fiscal

year. But this is largely attributable to the fact that the

Department of Public Works first supplied the Depart-

ment of Environmental Affairs with the Excel spread-

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203

sheet listing the 15,572 taxable properties in January

2008, more than halfway through the 2007-2008 fiscal

year. Further, the Department of Public Works did not

provide the Department of Environmental Affairs with

a list identifying the tax-exempt properties to be in-

spected for the 2007-2008 fiscal year until April, 2008.

And the Department of Environmental Affairs appar-

ently lacked sufficient time and resources to complete

the overwhelming majority of inspections in the 5

months that remained in the 2007-2008 fiscal year.

Moreover, the Department of Environmental Affairs’

record keeping during this period was exceedingly lax.

Finally, the evidence generated during supplemental

discovery suggests that the city is attempting to elimi-

nate the chaos associated with the initial implementa-

tion of the inspection process and to install a process by

which it actually inspects each property subject to

inspection. Indeed, Willa Williams, the general manager

of the Department of Environmental Affairs, indicated

that she is attempting to ensure that inspections the

city conducts are performed in a regular, continuous,

and systematic manner during the entire fiscal year. To

this end, Williams has revamped the inspection process

for the 2008-2009 fiscal year. According to Williams:

[f]or 2008/2009, each ECI [Environmental Control Inspector]

is given a daily “route sheet” listing 25 properties to be

inspected, along with 25 corresponding inspection checklists.

Inspectors are also provided with copies of a document

entitled Frequently Asked Questions (“FAQ”)....Inspectors

are required to provide a copy of the FAQ to those with whom

they make contact at an inspection site. If no personal contact

is possible, a copy of the FAQ is left at the premises. At the end

of each day, inspectors return their completed checklists and

corresponding route sheet to a Principal Environmental Con-

trol Inspector who counts and proofreads the checklists. The

completed route sheets are signed and dated by the ECI

204 287 M

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184 [Jan

and the Principal. The route sheet and corresponding

checklists are given to a clerical who checks the count and

enters data from the completed checklists into an elec-

tronic database....After entering inspection data in the

electronic database, the clerical files the route sheet, check-

list, and related communications to and from the property

owners. The filed documents are maintained in order by

parcel number.

Williams further indicated that the Department of

Environmental Affairs no longer relies on the Excel

spreadsheets that the Department of Public Works sup-

plies. Instead, the Department of Environmental Affairs

created its own “Access database” to track inspection

activity. According to Williams, the Access database

allows for reports to be generated from the data recorded.

DEA uses the Access database to generate a report entitled

“Reconciliation Sheet.” That report shows how many inspec-

tions have been completed as of any given day for each of the

22 wards, the number still to be inspected, the number of

contacts received by DEA, and the percentage of inspections

left to complete. DEA uses the Reconciliation Sheet to moni-

tor the progress of inspections and to assign staff, as may be

necessary to ensure that the DEA is on track to compete all

2008/2009 inspections by June 30, 2009.

A reconciliation sheet generated on June 12, 2009,

indicates that, as of that date, the Department of

Environmental Affairs had completed 98 percent of the

inspections for fiscal year 2008-2009.

The switch to the Access database also made it

possible for the city to equip some of the inspectors with

“a portable computer known as a Toughbook.” As

Williams explained:

In her June 15, 2009 affidavit, Williams stated that, on the basis of its

performance of inspections during the 2008-2009 fiscal year, she antici-

pated that the Department of Environmental Affairs would complete all

inspections for fiscal year 2008-2009 before June 30, 2009.

2010] W

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205

The Toughbook contain[s] a computerized inspection

checklist from the Access database into which inspection data

is entered by the ECI. The Toughbook data entry replaces use

of the printed checklist. When a Toughbook is used, the ECI’s

[sic] still uses a printed route sheet which is completed and

reviewed by a Principal at the end of each day. The daily

inspection information in the Toughbook is uploaded to the

DEA’s computer system which is then incorporated by a DEA

computer specialist into the Access database.

On this record, the only inference we can reasonably

draw from the city’s failure to complete each and every

inspection required in the 2007-2008 fiscal year is that it

launched the inspection program before it had worked out

the details of the process. Such an inference does not,

however, support a conclusion that the city intended the

new solid waste inspection fee solely to generate revenue.

Wolf concentrates on the fact that the new solid

waste inspection fee generates revenue for the Depart-

ment of Public Works. But the fact that the fee gener-

ates such revenue does not conclusively establish that it

is a tax. “[A] regulatory fee can have dual purposes and

still maintain its regulatory characterization. As long as

the primary purpose of a fee is regulatory in nature, the

fee can also raise money provided that it is in support of

the underlying regulatory purpose ....”

Here, the new solid waste inspection fee generates

revenue in support of an underlying regulatory purpose.

The fact that the inspections that the Department of

Environmental Affairs performs generate funds for the

operations of the Department of Public Works does not

establish, as a matter of law, an intent by the city to raise

revenue under the guise of implementing a police power

regulation. Chapter 22 of the Detroit City Code charges

Westlake Transp, Inc v Pub Serv Comm, 255 Mich App 589, 613; 662

NW2d 784 (2003).

206 287 M

ICH

184 [Jan

the Department of Public Works with the overall respon-

sibility for solid waste collection and disposal within the

city. The inspections ensure commercial and industrial

properties within the city are under contracts for trash

disposal service, either with a private contractor or the

city. And the inspections ensure that the service the

property owner contracts for is adequate to handle the

amount of solid waste that the property generates. The

fees these inspections generate allow the city to “admin-

ister” Chapter 22 so as to reduce illegal dumping and

ensure compliance with Chapter 22. The purposes and

consequences of the Department of Environmental Af-

fairs’ inspections are related to the solid waste collection

and disposal goals that the Department of Public Works

addresses. Consequently, the city’s use of the fees to

further solid waste collection and disposal does not dem-

onstrate, as a matter of law, an intent on the part of the

city to raise revenue under the guise of a police power

regulation.

(2) PROPORTIONALITY OF THE FEE TO THE SERVICE PROVIDED

With regard to the second criterion, “[f]ees charged

by a municipality must be reasonably proportionate to

the direct and indirect costs of providing the service for

which the fee is charged.”

This Court must presume

that the amount of the fee is reasonable, “unless the

contrary appears on the face of the law itself or is

established by proper evidence....”

Saginaw Co v John Sexton Corp of Mich, 232 Mich App 202, 212-213;

591 NW2d 52 (1998).

Kircher v City of Ypsilanti, 269 Mich App 224, 231-232; 712 NW2d

738 (2005).

Wheeler, 265 Mich App at 665-666, quoting Graham, 236 Mich App at

154-155, quoting Vernor v Secretary of State, 179 Mich 157, 168; 146 NW

338 (1914) (quotation marks omitted).

2010] W

OLF V

ETROIT

207

The Detroit City Council initially adopted a fee

schedule of $250 for commercial properties 10,000 or

less square feet, $500 for commercial properties be-

tween 10,001 and 49,999 square feet, and $1,000 for

commercial properties 50,000 or more square feet.

Scales developed this fee schedule on the basis of

estimates of the costs of performing the inspections.

The city never implemented this fee schedule. Rather,

the Detroit City Treasurer bills each commercial and

industrial property an inspection fee from the revised

fee schedule that it generated in response to Scales’

May/June 2007 costs analysis. Scales’ cost analysis,

which purports to reflect the direct and indirect person-

nel and overhead costs associated with the verification

and inspection process, revealed, as shown above, a

projected cost of $268.48 for each inspection of commer-

cial property of 10,000 square feet or less, a projected

cost of $321.72 for each inspection of commercial prop-

erty of 10,001 to 49,999 square feet, and a projected cost

of $476.30 for each inspection of commercial property of

50,000 or more square feet. According to Scales, on the

basis of her cost analysis, the city retained the $250

annual inspection fee for properties of 10,000 or less

square feet, but reduced the $500 fee for properties of

between 10,001 and 49,999 square feet to $325, and the

$1,000 fee for properties of 50,000 or more square feet

to $475. According to Scales, these fee amounts consti-

tute “reimbursement for our estimated cost of perform-

ing the inspections citywide.”

Scales admitted that she based her cost analysis on

estimates that the city generated before it actually

implemented the inspection process. She stated that a

new cost analysis would have to be performed once the

city had finalized the inspection process. However,

beginning with the 2009-2010 fiscal year, the city in-

tends to reduce the inspection fee to $200 for each

208 287 M

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184 [Jan

parcel, regardless of the size of the parcel to be in-

spected. The fact that the city intends to reduce the fees

charged to a single flat fee is a strong indicator that the

fees actually charged were disproportionate.

Nevertheless, affidavits and deposition testimony

that both Scales and Mauricio Kohn

provided reflect

their good-faith attempts, and hence the city’s good-

faith attempts, to determine a reasonable fee on the

basis of the information then existing and available to

them. The evidence also suggests that the source of any

disproportionality in the fees that the city actually

charged is not an intent on the part of the city to

generate a revenue stream outside its taxing power by

subterfuge. Rather, the evidence suggests that the city’s

lack of preparedness to implement the solid waste

disposal inspection process and its resulting inept

launching of the inspection process caused any such

disproportionality.

(3) VOLUNTARY CRITERION

With regard to the third criterion—whether the fee

contains any element of volition—the parties’ documen-

tation establishes that the fee is voluntary. The fee

applies only to those properties for which the owners do

not contract with the city’s Department of Public Works

for solid waste removal services. Consequently, the

property owner may choose to avoid paying the new

Mauricio Kohn is an expert hired by the city to evaluate the

reasonableness of Scales’ cost analysis in an effort to forecast the costs to

be incurred by the city in the performance of the inspections. We mention

his involvement only to further demonstrate that the city engaged him in

a good-faith attempt to determine “what would be a reasonable amount

for the City of Detroit...tocharge as a fee to conduct inspections of

property owners that do not use the City’s Solid Waste Collection

Services...,soastoassure that the fee is reasonably proportionate to

cover the direct and indirect costs of providing these services.”

2010] W

OLF V

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209

solid waste inspection fee by simply contracting with

the Department of Public Works for solid waste collec-

tion and disposal services. The voluntary aspect of the

fee suggests that the fee is not a disguised tax.

(4) ADDITIONAL FACTORS

The fact that the city bills the inspection fee on the

property owner’s tax bill and may place a lien on the

property owner’s parcel in the amount of the fee does

not transform an otherwise proper fee into a tax.

III. CONCLUSION

The first and third Bolt criteria support a conclusion

that the new solid waste inspection fee is a fee, not a

hidden tax. The fee serves a recognized regulatory pur-

pose. The property owner determines whether that own-

er’s property is subject to the fee by the owner’s choice on

how to dispose of the solid waste that the owner’s use of

that property generates. Further, the good-faith attempts

on the city’s part to determine a reasonable fee on the

basis of the information then existing and available to it

support the conclusion that the new solid waste inspection

fee is a valid fee and not a disguised tax.

In sum, we conclude that the new solid waste inspec-

tion fee constitutes a poorly launched, but nonetheless

permissible, regulatory fee. Therefore, it is not a tax

that implicates the Headlee Amendment.

Accordingly,

we deny Wolf’s motion for summary disposition and

enter summary disposition in favor of the city.

Because

our resolution on this issue is dispositive, Wolf’s motion

for class certification is moot.

Bolt, 459 Mich at 168.

Const 1963, art 9, § 31.

MCR 2.116(I)(2).

210 287 M

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184 [Jan

WEISHUHN v CATHOLIC DIOCESE OF LANSING

Docket No. 287174. Submitted December 9, 2009, at Detroit. Decided

January 26, 2010, at 9:00 a.m.

Madeline Weishuhn brought an action in the Genesee Circuit Court,

Archie L. Hayman, J., against the Catholic Diocese of Lansing and

St. Mary’s Catholic Church, alleging violations of the Civil Rights

Act (CRA), MCL 37.2101 et seq., and the Whistleblowers’ Protec-

tion Act (WPA), MCL 15.361 et seq., following the defendants’

decision not to renew plaintiff’s contract to teach mathematics and

religion classes at St. Mary’s Elementary School in Mount Morris.

The trial court granted defendants’ motions for summary disposi-

tion of the WPA claim and the CRA claim. Defendants appealed by

leave granted with regard to the CRA claim. The Court of Appeals,

AHRA

,P.J., and W

HITBECK

and B

ECKERING

, JJ., held that the minis-

terial exception to the application of employment-discrimination

and civil rights statutes to religious institutions and their minis-

terial employees exists in Michigan. The Court of Appeals vacated

the order denying summary disposition of the CRA claim and

remanded the case to the trial court for an analysis, pursuant to a

nonexhaustive list of factors, whether plaintiff was a ministerial

employee and conclusions in that regard. 279 Mich App 150 (2008).

On remand, the trial court determined that the ministerial excep-

tion applied to plaintiff and dismissed the CRA claim. Plaintiff

appealed the dismissal of both her WPA claim and her CRA claim.

The Court of Appeals held:

1. The trial court did not err by determining that plaintiff’s

duties were primarily religious in nature. Teaching “secular”

classes is not necessarily purely secular in the context of religious

schools, particularly in this case where plaintiff stated that she

incorporated her religious teachings into her mathematics lessons.

2. All aspects of plaintiff’s work had religious significance,

including her teaching of religion classes and involvement in

planning masses and preparing students for confirmation and

reconciliation services.

3. Plaintiff’s role in educating and indoctrinating the children

as a teacher of religion was important to and furthered the

purposes of the church.

2010] W

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4. Although plaintiff did not assume a liturgical role within the

entire congregation, she was intimately involved in liturgical

planning of worship services, as well as providing confirmation

and reconciliation services for students. The trial court did not err

by determining that plaintiff was a ministerial employee and that

defendants were entitled to summary disposition of the CRA claim

under MCR 2.116(C)(4).

5. The WPA claim is also subject to the ministerial exception.

The ministerial exception operates to bar any claim the resolution

of which would limit a religious institution’s right to select who

will perform particular spiritual functions. The exception may be

applied to WPA claims that involve a religious institution and a

ministerial employee.

6. The ministerial exception does not apply to all employment

decisions by religious institutions. It applies only to claims involv-

ing a religious institution’s choice as to who will perform spiritual

functions.

7. Termination of the employment of a ministerial employee by

a religious institution is an absolutely protected action under the

First Amendment, regardless of the reason for doing so. The trial

court did not err by dismissing both the CRA claim and the WPA

claim.

Affirmed.

1. C

ONSTITUTIONAL

AW —

IVIL

IGHTS —

INISTERIAL

XCEPTION —

HISTLE-

BLOWERS

’P

ROTECTION

The “ministerial” exception is a nonstatutory, constitutionally com-

pelled exception to the application of employment-discrimination and

civil rights statutes to religious institutions and their ministerial

employees; the exception generally bars inquiry into a religious

institution’s underlying motivation for employment decisions regard-

ing ministerial employees; the exception applies to claims under the

Civil Rights Act and the Whistleblowers’ Protection Act and operates

to bar any claim the resolution of which would limit a religious

institution’s right to select who will perform particular spiritual

functions; the appropriate analysis is the religiously affiliated nature

of the institution and the employee’s role there, not the particular

issues that spring from a termination of employment and the result-

ing claims (MCL 15.361 et seq., 37.2101 et seq.).

2. C

ONSTITUTIONAL

AW —

IVIL

IGHTS —

MPLOYMENT

ISCRIMINATION —

INISTERIAL

XCEPTION —

PIRITUAL

UNCTIONS

The ministerial exception to the application of employment-

discrimination and civil rights statutes to religious institutions

212 287 M

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211 [Jan

and their ministerial employees does not apply to all employment

decisions by religious institutions, nor does it apply to all claims by

ministers; it applies only to claims that involve a religious institu-

tion’s choice as to who will perform spiritual functions; termina-

tion of the employment of a ministerial employee by a religious

institution is an action absolutely protected under the First

Amendment, regardless of the reason for doing so.

Law Office of Julie A. Gafkay, PLC (by Julie A.

Gafkay), and Joliat, Tosto, McCormick & Bade, PLC (by

Michael T. Joliat), for plaintiff.

Foster, Swift, Collins & Smith, P.C. (by Thomas R.

Meagher and Liza C. Moore), for defendants.

Before: M

ETER

,P.J., and B

ORRELLO

and S

HAPIRO

,JJ.

HAPIRO

, J. Plaintiff, a teacher at St. Mary’s Elemen-

tary School in Mount Morris, filed this action against

defendants, alleging violation of the Michigan Civil

Rights Act (CRA), MCL 37.2101 et seq., and violation of

the Whistleblowers’ Protection Act (WPA), MCL 15.361

et seq., after her contract was not renewed for the

2005-2006 school year. In June 2006, the trial court

granted defendants’ motion for summary disposition of

the WPA claim pursuant to MCR 2.116(C)(10). Defen-

dants later moved for summary disposition of the CRA

claim under MCR 2.116(C)(4), arguing that the trial

court lacked subject-matter jurisdiction over that claim

pursuant to the “ministerial exception.” The trial court

denied that motion. In a prior interlocutory appeal, this

Court held that “the ministerial exception exists in

Michigan,” vacated the order denying the motion, and

remanded the case to the trial court “for an analysis of,

and conclusions regarding, whether [plaintiff] was a

‘ministerial’ employee.” Weishuhn v Catholic Diocese of

Lansing, 279 Mich App 150, 152; 756 NW2d 483 (2008).

On remand, the trial court concluded that the ministe-

2010] W

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213

rial exception applied to plaintiff and, accordingly, dis-

missed her CRA claim pursuant to MCR 2.116(C)(4).

Plaintiff appeals as of right, challenging the dismissal of

both her WPA claim and her CRA claim. We affirm.

I. BASIC FACTS AND PROCEEDINGS

In Weishuhn, 279 Mich App at 153-155, this Court

summarized the relevant underlying facts as follows:

A. WEISHUHN’S BACKGROUND

In 1992, Weishuhn obtained her Bachelor of Science

degree in elementary education from the University of

Michigan. For more than 10 years, until 1999, Weishuhn

worked for St. Charles and Helena Catholic Church in Clio,

Michigan. She was that church’s director of religious

education for its “parish religious ed[ucation] program” for

approximately eight years. In 2001, she obtained her mas-

ter’s degree in teaching from Marygrove College.

B. WEISHUHN’S EMPLOYMENT AND DUTIES AT ST. MARY’S

In August 1999, Weishuhn began teaching at St. Mary’s

Elementary School in Mount Morris, Michigan. Weishuhn

taught mathematics for the fifth through the eighth grades

and carried out religious responsibilities that included

teaching religion for the sixth through the eighth grades.

Initially, Weishuhn taught two mathematics classes and

four religion classes each day, but she later taught four

mathematics classes and three religion classes each day.

And in her final year at St. Mary’s (2004-2005), she taught

four mathematics classes and two religion classes each day.

At her deposition, Weishuhn explained that her

religious-education duties entailed teaching sixth-,

seventh-, and eighth-grade religion classes. She was also

responsible for planning Masses for those grades, as well as

assisting a fourth-grade teacher with student liturgies.

Weishuhn and the St. Mary’s pastor discussed the subject

matter of the Masses. Weishuhn also prepared her seventh-

214 287 M

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211 [Jan

and eighth-grade students for the sacrament of confirma-

tion, and she developed reconciliation (penance) services

twice a year. At her deposition, Weishuhn agreed that her

responsibilities were ministerial in the sense that she

provided religious direction for her students. She also

testified that religion was an integral part of the school’s

curriculum and her lesson plan.

C. THE PROCEEDINGS BELOW

After a series of employment-related incidents, none of

which involved the subject of religion, St. Mary’s terminated

Weishuhn’s employment in the spring of 2005. Weishuhn

later filed a two-count complaint against defendants, alleging

violations of the Whistleblowers’ Protection Act [MCL 15.361

et seq.] and the Civil Rights Act [MCL 37.2101 et seq.] for

retaliatory termination. Defendants then moved for sum-

mary disposition pursuant to MCR 2.116(C)(10), asserting

that both of Weishuhn’s claims failed as a matter of law. The

trial court granted the motion with respect to the Whistle-

blowers’ Protection Act claim, but it denied the motion with

respect to the retaliation claim under the Civil Rights Act.

In June 2006, defendants moved for summary disposi-

tion pursuant to MCR 2.116(C)(4), arguing that the trial

court lacked subject-matter jurisdiction over Weishuhn’s

employment-discrimination claim because of the ministe-

rial exception. Defendants asserted that “[b]ecause

[Weishuhn’s] duties while employed by St. Mary’s School

included a ‘spiritual function,’ the First Amendment of the

United States Constitution precludes application of the

Elliott Larsen Civil Rights Act... to [her] employment

relationship with St. Mary’s School.” The trial court denied

defendants’ motion, ruling that there was a question of fact

for the jury in terms of whether Weishuhn’s primary

function was spiritual in nature. In reaching its conclusion,

the trial court noted that the caselaw cited by the parties

used the word “primary.” The trial court also acknowl-

edged that there appeared to be some overlap between

Weishuhn’s duties in terms of secular and spiritual teach-

ing, and opined that “this is a case that maybe could create

2010] W

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215

some new law in this area, at least maybe get some

clarification as to whether or not there needs to be an

analysis by the court with respect to this primary or

secondary purpose.” The trial court gave effect to its ruling

in a subsequent written order. The trial court also denied

defendants’ motion for reconsideration of this matter.

This Court then concluded that the ministerial ex-

ception exists in Michigan,

vacated the order denying

the motion, and remanded the case for further proceed-

ings to determine whether plaintiff was a ministerial

employee, explaining:

The salient question then is whether Weishuhn was a

ministerial employee. On the basis of our review de novo,

we are unable to determine whether the trial court reached

a conclusion on whether Weishuhn was a ministerial em-

ployee. The trial court did engage in some discussion about

whether Weishuhn’s teaching functions were primarily

religious in nature. But ultimately the trial court concluded

that this was a fact question for the jury and therefore

denied defendants’ motion for summary disposition.

As we have stated above, this conclusion was erroneous.

We recognize, however, that the trial court was acting at a

considerable disadvantage because there was no explicit

holding that the ministerial exception existed in Michigan

and no guidance from Michigan appellate courts regarding

how to apply that exception. We therefore remand to the

trial court for an analysis of, and conclusions with regard

to, whether, in light of this opinion, Weishuhn was a

ministerial employee. In this regard, the trial court shall

This Court described the ministerial exception as follows:

The ministerial exception is a nonstatutory, constitutionally

compelled exception to the application of employment-

discrimination and civil rights statutes to religious institutions

and their “ministerial” employees. The ministerial exception has

its roots in the Establishment and Free Exercise of Religion

clauses of the First Amendment and generally bars inquiry into a

religious institution’s underlying motivation for a contested em-

ployment decision. [Id. at 152.]

216 287 M

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211 [Jan

consider the affidavits, depositions, admissions, or other

documentary evidence that the parties have submitted. In

undertaking that analysis and reaching these conclusions,

the trial court should focus on the totality of Weishuhn’s

duties and responsibilities, her position, and her functions.

More specifically, the trial court should consider the follow-

ing non-exhaustive list of factors:

(1) Whether Weishuhn had primarily religious duties

and responsibilities in the sense that her primary duties

consisted of teaching, spreading the faith, church gover-

nance, supervision of a religious order, or supervision or

participation in religious ritual and worship;

(2) Whether Weishuhn’s duties had religious significance;

(3) Whether Weishuhn’s position was inherently, prima-

rily, or exclusively religious, whether that position entailed

proselytizing on behalf of defendants, whether that posi-

tion had a connection to defendants’ doctrinal mission, and

whether that position was important to defendants’ spiri-

tual and pastoral mission; and

(4) Whether Weishuhn’s functions were essentially litur-

gical, that is, related to worship, and whether those functions

were inextricably intertwined with defendants’ religious doc-

trine in the sense that Weishuhn was intimately involved in

the propagation of defendants’ doctrine and the observance

and conduct of defendants’ liturgy by defendants’ congrega-

tion.

If, after consideration of these factors, the trial court

determines that Weishuhn’s position and function were such

that she was a ministerial employee, then the trial court shall

enter an order dismissing Weishuhn’s discrimination claim.

But if after this inquiry the trial court concludes that

Weishuhn was not a ministerial employee, it should schedule

further proceedings as necessary for trial. [Weishuhn, 279

Mich App at 177-179 (emphasis in original).]

II. STANDARD OF REVIEW

We review de novo trial court decisions on motions

for summary disposition. Id. at 155. We also review de

2010] W

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217

novo the trial court’s decision on the ministerial excep-

tion because this issue is a question of law. Id. at

175-176; In re Capuzzi Estate, 470 Mich 399, 402; 684

NW2d 677 (2004). Constitutional issues are also re-

viewed de novo on appeal. Weishuhn, 279 Mich App at

155.

III. CIVIL RIGHTS ACT CLAIM

With regard to the first factor the trial court was

directed to consider, we find no error in the trial court’s

determination that plaintiff’s duties were primarily

religious in nature. Plaintiff argues that the trial court

ignored evidence that the majority of her classes were

mathematics classes. We disagree. Although plaintiff

was hired in part to teach mathematics, she also taught

religion and she was actively involved in religious

planning and activities. She was involved in planning

student masses and helped prepare the students for

confirmation and reconciliation services. Plaintiff’s as-

sertion that “the majority” of her classes were math-

ematics classes appears to be based solely on the num-

ber of classes taught. The argument is erroneous

because it fails to consider the amount of classroom

time spent on each subject as well as the additional time

spent planning masses and preparing students for con-

firmation and reconciliation services. However, even if

we agreed that the total number of classes alone should

govern in this case, plaintiff has not shown that the trial

court’s determination that her duties were primarily

religious in nature was erroneous. Plaintiff’s argument

is based on the premise that teaching mathematics is

secular. However, teaching “secular” classes is not nec-

essarily “purely secular” in the context of religious

schools. Coulee Catholic Sch v Labor & Indus Review

Comm, 2009 WI 88, ¶¶ 52-55; 320 Wis 2d 275, 307-309;

218 287 M

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211 [Jan

768 NW2d 868 (2009). This is particularly true in this

case where plaintiff stated that she incorporated her

religious teachings into her mathematics lessons. In an

interview that plaintiff gave to The Catholic Times, she

explained that her students

“hear me talk about God and religion in math class as

much as I do in religion class. I’m not the kind of person

who separates religion—it’s part of who I am and what I

teach....Myultimate goal is to help each student develop

into a young Christian person who has a conscience.” [Lisa

Briggs, Teacher’s plan is simple: Lessons for a lifetime, The

Catholic Times, April 30-May 6, 2005, p 8.]

Therefore, we find no error in the trial court’s conclu-

sion that plaintiff’s duties were primarily religious,

notwithstanding the fact that she taught four math-

ematics and two religion classes in her last year of

teaching.

With regard to the second factor, plaintiff’s teaching

of religion classes and her involvement in planning

masses and preparing students for confirmation and

reconciliation services clearly have religious signifi-

cance. Further, plaintiff’s admission that she incorpo-

rated her religious teachings into her mathematics

classes indicates all aspects of her work had religious

significance. Thus, we agree with the trial court that

this factor also weighs in favor of finding that plaintiff

was a ministerial employee.

In its analysis of the third factor, the trial court found

that plaintiff’s position was primarily religious because,

as a teacher of religion, she was involved in proselytiz-

ing on behalf of the church. We agree. As the trial court

noted, educating and indoctrinating the children was

important to and furthered the purposes of the church.

Thus, plaintiff’s involvement in planning masses and

preparing students for confirmation and reconciliation

2010] W

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219

services were connected to defendants’ doctrinal mis-

sion, and these activities were important to defendants’

spiritual and pastoral mission. Moreover, plaintiff ad-

mitted in her interview with The Catholic Times that

even in her math classes, she did not separate religion

and that it was part of her mission to promote and

reinforce Christian ideals.

The fourth factor presents a closer question, given

that plaintiff did not assume a liturgical role within the

entire congregation. Still, she was intimately involved

in liturgical planning of worship services, as well as

confirmation and reconciliation services, for students.

Further, her role as a religion teacher involved propa-

gation of defendants’ doctrine to students, which in-

cluded guidance in worship services and rituals.

We conclude that, in light of this record, the trial

court did not err by determining that consideration of

the foregoing factors established that plaintiff was a

ministerial employee.

Plaintiff argues that the facts in this case more

closely resemble those in cases cited in Weishuhn that

found the ministerial exception did not apply to teach-

ers. This argument misconstrues the Court’s discussion

of those opinions in Weishuhn. This Court cited cases

such as Redhead v Conference of Seventh-Day Adven-

tists, 440 F Supp 2d 211, 220-222 (ED NY, 2006), and

Guinan v Roman Catholic Archdiocese of Indianapolis,

42 F Supp 2d 849, 853 (SD Ind, 1998), and noted that

these courts “have ruled that the ministerial exception

did not apply to teachers.” Weishuhn, 279 Mich App at

164-165. However, this Court also reviewed cases in

which the contrary view was followed. Id. at 163-164.

The Court ruled that the ministerial exception could

apply to the plaintiff depending upon the documentary

evidence, id. at 178-179, and rejected the position that

220 287 M

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211 [Jan

the ministerial exception is inapplicable to teachers.

Instead, the Court opted for a broader totality of the

circumstances test. Id. To the extent that plaintiff is

requesting we reconsider that determination, we must

decline. Under the law of the case, we are bound by

Weishuhn. Sinicropi v Mazurek, 279 Mich App 455, 465;

760 NW2d 520 (2008).

For these reasons, the trial court did not err by

finding that plaintiff was a ministerial employee and

that defendants were therefore entitled to summary

disposition of plaintiff’s CRA claim pursuant to MCR

2.116(C)(4).

IV. WHISTLEBLOWERS’ PROTECTION ACT CLAIM

Plaintiff also challenges the trial court’s determina-

tion that she failed to establish a genuine issue of

material fact with respect to her WPA claim, thereby

entitling defendants to summary disposition of that

claim under MCR 2.116(C)(10). We find it unnecessary

to decide whether dismissal of plaintiff’s WPA claim

was proper under MCR 2.116(C)(10) because we agree

with defendants that the WPA claim is also subject to

the ministerial exception.

Michigan courts have not yet addressed the applica-

bility of the ministerial exception to WPA claims. The

ministerial exception is rooted in the First Amendment

and, thus, generally takes precedence over statutorily

based claims. As explained in Weishuhn, 279 Mich App

at 152, it is a “constitutionally compelled exception to

the application of employment-discrimination and civil

rights statutes to religious institutions and their ‘min-

isterial’ employees.” Although the CRA and the WPA

are distinct acts, they have as a common purpose the

prevention of discrimination in employment on the

basis of statutorily recognized factors rooted in public

2010] W

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policy. Indeed, the Michigan Supreme Court has held that

“ ‘[w]histleblower statute[s] [are] analogous to antiretali-

ation provisions of other employment discrimination stat-

utes’ ” and “ ‘the policies underlying these similar stat-

utes warrant parallel treatment....’”Shallal v Catholic

Social Servs of Wayne Co, 455 Mich 604, 617; 566 NW2d

571 (1997), quoting Rouse v Farmer’s State Bank of

Jewell, Iowa, 866 F Supp 1191, 1204 (NE Iowa, 1994).

Thus, the rationale for recognizing the existence of the

ministerial exception to a claim under the CRA seems to

apply equally to a claim under the WPA.

Although we located no federal cases specifically involv-

ing “whistleblower” claims, there have been several in-

volving Title VII of the Civil Rights Act, as amended, 42

USC 2000e to 2000e-17 (Title VII), all of which have

concluded that the ministerial exception applies.

In Gellington v Christian Methodist Episcopal

Church, 203 F3d 1299 (CA 11, 2000), the plaintiff was

an ordained minister who alleged that he was retaliated

against and constructively discharged by the defendant

in violation of Title VII. Id. at 1300. The United States

Court of Appeals for the Eleventh Circuit upheld the

district court’s grant of summary disposition, conclud-

ing that the ministerial exception applied to the claim.

Id. at 1301. The court noted that “applying Title VII to

the employment relationship between a church and its

clergy would involve ‘excessive government entangle-

ment with religion’ as prohibited by the Establishment

Clause of the First Amendment” because “[a] church’s

view on whether an individual is suited for a particular

clergy position cannot be replaced by the courts’ with-

out entangling the government in questions of religious

doctrine, polity, and practice.” Id. at 1304 (quotation

marks and citation omitted).

222 287 M

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211 [Jan

In Elvig v Calvin Presbyterian Church, 375 F3d 951,

965 (CA 9, 2004), the plaintiff alleged that while serving

as the associate pastor for defendant, the lead pastor

“engaged in sexually harassing and intimidating con-

duct toward her, creating a hostile working environ-

ment” and that when she made a formal complaint,

filed a claim of discrimination with the EEOC and

received her right-to-sue letter, she was placed on

unpaid leave and subsequently her employment was

terminated. Id. at 953. The plaintiff had “alleged five

retaliatory adverse employment actions: (1) the re-

moval of certain duties, (2) her suspension, (3) her

termination, (4) the refusal to permit the circulation of

her personal information form and (5) retaliatory ha-

rassment in the form of verbal abuse and intimidation.”

Id. at 965. The United States Court of Appeals for the

Ninth Circuit noted that “the first four of these actions

are protected ministerial decisions” because “[a]

church’s selection of its ministers is unfettered, and its

true reasons—whatever they may be—are therefore

unassailable.” Id. at 961, 965. Simply put, “the [c]hurch

cannot be required to articulate a justification for its

ministerial decisions....”Id. at 961-962. On the basis

of these holdings, the Ninth Circuit upheld the dis-

missal of the plaintiff’s retaliation claims.

Id. at 969.

The Ninth Circuit also ordered the district court to

consider the plaintiff’s state law claims, but noted that

“ ‘[j]ust as there is a ministerial exception to Title VII,

there must also be a ministerial exception to any state

law cause of action that would otherwise impinge on the

The Ninth Circuit did hold that the plaintiff’s sexual harassment

claim and the retaliation claim (predicated on retaliatory harassment)

survived, but that the “protected ministerial decisions—the removal of

certain duties, her suspension, her termination and the refusal to permit

the circulation of her personal information form” could not be bases of

liability for those claims. Elvig, 375 F3d at 969.

2010] W

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church’s prerogative to choose its ministers or to exer-

cise its religious beliefs in the context of employing its

ministers.’ ” Id., quoting Bollard v California Province

of the Society of Jesus, 196 F3d 940, 950 (CA 9, 1999).

In Petruska v Gannon Univ, 462 F3d 294 (CA 3,

2006), the plaintiff was a chaplain working for a private

Catholic university. Id. at 299-300. The plaintiff claimed

that on the basis of her opposition to sexual harassment

and her gender, the university retaliated by restructur-

ing itself in a manner that constructively discharged

her. Id. at 300-302. The United States Court of Appeals

for the Third Circuit concluded that “the First Amend-

ment protects [the university’s] right to restructure—

regardless of its reason for doing so” because the

“choice to restructure constituted a decision about who

would perform spiritual functions and about how those

functions would be divided” and dismissed the plain-

tiff’s Title VII claims, as well as her state law claims for

civil conspiracy and negligent supervision and reten-

tion. Id. at 307-308, 309.

At least one state has explicitly applied the ministe-

rial exception to state whistleblower claims. In Archdio-

cese of Miami, Inc v Minagorri, 954 So 2d 640 (Fla App,

2007),

the Florida Court of Appeals considered a

whistleblower claim brought by a principal of a Catholic

school, who alleged that when she complained to the

archdiocese about her supervisor’s assaulting and bat-

tering her, the archdiocese retaliated by firing her. Id. at

641. The court noted that the ministerial exception had

been applied to claims under the Americans with Dis-

Although this is a Florida Court of Appeals decision, the Florida

Supreme Court, although originally granting leave, indicated the review

was improvidently granted, Minagorri v Archdiocese of Miami, Inc, 985

So 2d 1086 (Fla, 2008), and the United States Supreme Court denied

review, Minagorri v Archdiocese of Miami, Inc, 555 US 1102; 129 S Ct

936; 173 L Ed 2d 113; (2009).

224 287 M

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211 [Jan

abilities Act, 42 USC 12101 et seq., the Age Discrimina-

tion in Employment Act, 29 USC 621 et seq., and

common-law claims brought against religious employ-

ers, and held “[w]e see no reason why the ministerial

exception should not be applied to the instant whistle-

blower claim.” Id. at 643.

Thus, the general consensus is that “[t]he ministerial

exception, as we conceive of it, operates to bar any

claim, the resolution of which would limit a religious

institution’s right to select who will perform particular

spiritual functions.” Petruska, 462 F3d at 307; see also

Hartwig v Albertus Magnus College, 93 F Supp 2d 200,

211 n 13 (D Conn, 2000) (the appropriate analysis is the

religiously affiliated nature of the institution and the

employee’s role there, “not the particular issues which

spring from the termination of his employment rela-

tionship and the resulting claims”). We agree with this

approach and adopt it as our position. Accordingly, we

hold that the ministerial exception may be applied to

WPA claims that involve a religious institution and a

ministerial employee.

We recognize that it seems unjust that employees of

religious institutions can be fired without recourse for

reporting illegal activities, particularly given that mem-

bers of the clergy, as well as teachers, are mandated

reporters. MCL 722.623(1)(a). However, to conclude

otherwise would result in pervasive violations of First

Amendment protections.

Although we recognize the unfairness of the position, we lack the

power to alter the legislative reporting requirements and the Legislature

cannot trump the United States Constitution. Our ruling does not reduce

or immunize statutory reporters who are ministerial employees of

religious institutions from the consequences if they fail to meet their

mandatory reporting duties because they fear retaliation for which there

would be no civil recourse.

2010] W

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We are mindful of the potential for abuse our holding

theoretically may invite; namely, the use of the First

Amendment as a pretextual shield to protect otherwise

prohibited employment decisions. But we think that saving

grace lies in the recognition that courts consistently have

subjected personnel decisions of various religious organi-

zations to statutory scrutiny where the duties of the

employees were not of a religious nature. We have confi-

dence that courts will continue to consider these situations

on a case-by-case basis, looking in each case to see whether

the plaintiff’s employment discrimination claim can be

adjudicated without entangling the court in matters of

religion. [Scharon v St Luke’s Episcopal Presbyterian

Hosps, 929 F2d 360, 363n3(CA8,1991) (citations

omitted).]

Furthermore, we agree with the Third Circuit that the

ministerial exception

does not apply to all employment decisions by religious

institutions, nor does it apply to all claims by ministers. It

applies only to claims involving a religious institution’s

choice as to who will perform spiritual functions. [Petruska,

462 F3d at 305-306 n 8.]

Thus, some claims by ministerial employees are not

necessarily foreclosed by the ministerial exception. For

example, certain “independent” tort and contract ac-

tions have survived, see Petruska, 462 F3d at 310-311

(holding that a negligent misrepresentation claim was

unaffected by the ministerial exception because its

resolution “does not turn on the lawfulness of the

decision to restructure, but rather upon the truth or

falsity of the assurances that she would be evaluated on

her merits” and that the breach of contract claim could

also move forward because enforcement “in no way

constitutes a state-imposed limit upon a church’s free

exercise rights,” although it would be subject to an

evaluation of whether resolution “required inquiry into

the church’s ecclesiastical policy”); Elvig, 375 F3d at

226 287 M

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211 [Jan

965 (holding that “retaliatory harassment in the form

of verbal abuse and intimidation” was not a protected

employment decision and, therefore, the plaintiff’s re-

taliatory harassment claim was not barred by the

application of the ministerial exception), as well as

claims where the termination decision is made by a

nonreligious entity, see Maruani v AER Servs, Inc,

unpublished memorandum opinion of the United States

District Court for the District of Minnesota, issued

September 18, 2006 (Docket No. 06-176) (holding that

the plaintiff’s whistleblower claim could proceed be-

cause “the Court can envision a situation wherein [the

plaintiff] could contend that the rabbis’ determination

did not in fact motivate [the nonreligious entity em-

ployer] to take the adverse employment action without

challenging the validity, existence or plausibility of the

religious doctrine itself”).

However, none of these exceptions apply to the

present case because plaintiff’s WPA claim alleges re-

taliation by termination of employment. Termination of

a ministerial employee by a religious institution is an

absolutely protected action under the First Amend-

ment, regardless of the reason for doing so. Petruska,

462 F3d at 307, 309; Elvig, 375 F3d at 961. In light of

our affirmance of the trial court’s conclusion that

plaintiff was a ministerial employee, the trial court

properly granted summary disposition as to plaintiff’s

WPA claim, albeit for the wrong reason. Taylor v Laban,

241 Mich App 449, 458; 616 NW2d 229 (2000).

Affirmed.

2010] W

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HOWELL EDUCATION ASSOCIATION, MEA/NEA

v HOWELL BOARD OF EDUCATION

Docket No. 288977. Submitted January 5, 2010, at Lansing. Decided

January 26, 2010, at 9:05 a.m.

The Howell Education Association, MEA/NEA, Doug Norton, Jeff

Hughey, Johnson McDowell, and Barbara Cameron brought an

action in the Livingston Circuit Court, Stanley J. Latreille, J.,

against the Howell Board of Education and the Howell Public

Schools, seeking to prevent the disclosure, under the Freedom of

Information Act (FOIA), MCL 15.231 et seq., to intervening

defendant/counter-plaintiff Chetly Zarko of e-mail sent to and

from Howell Public Schools teachers Norton, Hughey, and McDow-

ell (who are also members of and officials for the Howell Education

Association, MEA/NEA) and e-mail sent to and from Cameron (a

MEA representative) to and from Norton, McDowell, and Hughey.

Plaintiffs sought a declaratory judgment providing, in part, that

the personal e-mail of the individual plaintiffs and their e-mail

pertaining to union business were not public records subject to

disclosure under FOIA. Defendants contended that the e-mails

were public records because, when they were sent or received on

defendants’ e-mail system, a copy of each e-mail was automatically

retained in the system’s memory. Defendants also maintained that

the individual plaintiffs’ alleged violation of defendants’ accept-

able use policy barring personal use of the e-mail system rendered

the personal e-mails public records subject to FOIA. The trial court

granted summary disposition in favor of defendants. Plaintiffs

appealed, specifically limiting their appeal to whether the trial

court properly concluded that all e-mails generated through de-

fendants’ e-mail system that are retained or stored by defendants

are public records subject to FOIA.

The Court of Appeals held:

1. Mere possession of a record by a public body does not render

the record a public document. Rather, the use or retention of the

document must be in the performance of an official function.

2. For the e-mails at issue to be public records, they must have

been stored or retained by defendants in the performance of an

official function. There is nothing about the personal e-mail, given

228 287 M

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228 [Jan

that by its very definition it has nothing to do with the operation

of the schools, that indicates that it is required for the operation of

an educational institution.

3. Unofficial private writings belonging solely to an individual

should not be subject to public disclosure merely because the

individual is an employee of a public body. It was not the intent of

the Legislature when it passed FOIA to render all personal e-mail

sent by governmental employees while at work subject to public

release upon request.

4. Personal e-mails are not rendered public records under

FOIA merely by use of a public body’s computer system to send or

receive those e-mails or by an automatic back-up system that

causes the public body to retain those e-mails.

5. Although defendants’ acceptable use policy notified com-

puter users that personal e-mail may be looked at by school

officials and that documents could be released pursuant to a

subpoena, it did not indicate that users’ e-mail may be viewed by

any member of the public who simply asks. Public employees’

agreement to the acceptable use policy did not render their

personal e-mail subject to FOIA.

6. Although violation of the acceptable use policy can subject

defendants’ employees to sanctions, a violation does not transform

the employees’ personal communications into public records.

7. The back-up system that retained copies of all e-mail with-

out distinguishing between that sent pursuant to defendants’

educational goals and that sent for personal reasons did not

constitute an official function sufficient to render the e-mails

public records subject to FOIA.

8. The e-mail involving internal union communications is

personal e-mail.

9. The trial court erred by concluding that all e-mails captured

in a government e-mail computer storage system, regardless of

their purpose, are rendered public records subject to FOIA. The

order granting summary disposition must be reversed and the case

must be remanded to the trial court for further proceedings.

Reversed and remanded.

1. R

ECORDS —

REEDOM OF

NFORMATION

CT —

ORDS AND

HRASES —

UBLIC

ECORDS

A “public record” for purposes of the Freedom of Information Act is

a writing prepared, owned, used, in the possession of, or retained

by a public body in the performance of an official function, from

the time it is created; mere possession of a record by a public body

2010] H

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229

does not render the record a public document; the use or retention

of a record by a public body must be in the performance of an

official function for the record to be a public record (MCL

15.232[e]).

2. R

ECORDS —

REEDOM OF

NFORMATION

CT —

UBLIC

ECORDS —

-MAIL —

FFICIAL

UNCTIONS

A back-up system employed by a public school system to retain all

e-mails sent through the school’s computer system and that does

not distinguish between e-mails sent pursuant to the school’s

education goals and those sent by employees for personal reasons

is not performing an “official function” sufficient to render the

e-mails public records subject to the Freedom of Information Act

(MCL 15.232[e]).

3. R

ECORDS —

REEDOM OF

NFORMATION

CT —

ERSONAL

OCUMENTS —

UBLIC

OCUMENTS

Purely personal documents can become public documents for pur-

poses of the Freedom of Information Act where the subsequent use

or retention of the personal documents by a public body is in the

performance of an official function of the public body (MCL

15.232[e]).

White, Schneider, Young & Chiodini, P.C. (by Michael

M. Shoudy, Kathleen Corkin Boyle, and Dena M. Lamp-

inen), for plaintiffs.

Thrun Law Firm, P.C. (by Raymond M. Davis, David

M. Revore, and Eric D. Delaporte), for defendants.

Jaffe, Raitt, Heuer & Weiss, P.C. (by Arthur H. Siegal

and Nicole R. Foley), and John C. Scully, for Chetly

Zarko.

Amicus Curiae:

Patrick J. Wright for the Mackinac Center for Public

Policy.

Before: C

AVANAGH

,P.J., and F

ITZGERALD

and S

HAPIRO

JJ.

230 287 M

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228 [Jan

URIAM

. Plaintiffs appeal as of right the trial

court’s grant of summary disposition to defendants and

dismissal of their “reverse” Freedom of Information Act

(FOIA), MCL 15.231 et seq., action.

We reverse and

remand for further proceedings consistent with this

opinion. While we believe the issue in this case is one

that must be resolved by the Legislature, and we call

upon the Legislature to address it, we conclude that

under the FOIA statute the individual plaintiffs’ per-

sonal e-mails were not rendered public records solely

because they were captured in a public body’s e-mail

system’s digital memory. Additionally, we conclude that

mere violation of an acceptable use policy barring

personal use of the e-mail system—at least one that

does not expressly provide that e-mails are subject to

FOIA—does not render personal e-mails public records

subject to FOIA.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2007, the intervenor, Chetly Zarko, began

submitting a series of FOIA requests to defendant

Howell Public Schools (HPS), including requests for all

e-mail beginning January 1, 2007, sent to and from

three HPS teachers: plaintiffs Doug Norton, Jeff

Hughey, and Johnson McDowell. During that time, each

of these teachers was also a member and official for

plaintiff Howell Education Association, MEA/NEA

(HEA); Norton was president, Hughey was vice presi-

dent for bargaining, and McDowell was vice president

for grievances. After the filing of this lawsuit, Zarko

also requested all e-mail sent to or from plaintiff

Barbara Cameron that was to or from Norton, McDow-

A “reverse FOIA” claim is one where a party “seek[s] to prevent

disclosure of public records under the FOIA.” Bradley v Saranac Com-

munity Sch Bd of Ed, 455 Mich 285, 290; 565 NW2d 650 (1997).

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ell, and Hughey. Cameron is the UniServ Director

employed by the Michigan Education Association to

provide representational services to the HEA. The

requests were apparently made in the context of heated

negotiations for a new collective bargaining agreement

that were being reported in the local media.

The HEA objected to having to release union com-

munications sent between HEA leaders or between

HEA leaders and HEA members and took the position

that, to the extent the e-mails addressed union matters,

they were not “public records” as defined under FOIA.

The HEA asked counsel for HPS to confirm whether

the internal union communications of Norton, Hughey,

and McDowell would be treated as nondisclosable.

Counsel for HPS noted that there was no reported

caselaw regarding whether personal e-mails or internal

union communications maintained on the computer

system of a public body were public records subject to

disclosure under FOIA and suggested a “friendly law-

suit” to determine the applicability of FOIA to the

e-mail requests made by Zarko.

Plaintiffs filed their complaint in May 2007 against

HPS and defendant Howell Board of Education request-

ing a declaratory judgment that: (1) personal e-mails

and e-mails pertaining to union business are not “public

records” as defined by FOIA; (2) that the collective

bargaining e-mails were exempt pursuant to MCL

15.243(1)(m); and (3) that the e-mails containing legal

advice were exempt pursuant to MCL 15.243(1)(g).

Plaintiffs also requested an injunction to prevent the

release of the documents until the issues could be

resolved. A temporary restraining order (TRO) was

entered on May 7, 2007. Following a show cause hear-

ing, Zarko was permitted to intervene as an intervening

defendant and counter-plaintiff, the TRO was extended

232 287 M

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228 [Jan

“until further notice,” and the parties agreed to orga-

nize all the e-mails for an in camera review. The parties

were directed to release all uncontested e-mails and to

deliver to the court all e-mails they contended were

either not public records, or were subject to an exemp-

tion under FOIA.

The trial court appointed a special master to review

approximately 5,500 e-mails.

At the same time, plain-

tiffs informed the trial court that they were withdraw-

ing their request to defendants that an exemption

under MCL 15.243(1)(m) be asserted regarding e-mail

sent between one or more plaintiffs and the school

administration. Defendants then released those e-mails

to Zarko.

Defendants moved for summary disposition in July

2008, arguing that plaintiffs lacked standing to prevent

disclosure because all the documents were public

records and only defendants had the authority to assert

the exemption provisions of MCL 15.243. Defendants

also argued that the trial court could not grant relief to

Hughey given that his e-mail had already been released

and could not grant relief as to any e-mail from the

other plaintiffs to which Hughey was a party because

that e-mail was “no longer secret.” Defendants argued

that any exemption under MCL 15.243(1)(m) was inap-

plicable because the collective bargaining agreement

had already been reached. Thus, there could be no harm

to the collective bargaining negotiations, as the nego-

tiations had concluded. Finally, defendants argued that

plaintiffs were not entitled to injunctive relief because

they could not show irreparable harm.

These e-mails did not include any to or from Hughey. On May 2, 2007,

before the suit was filed, the review of these e-mails was completed and

defendants released the e-mails to Zarko.

2010] H

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The trial court held a hearing on defendants’ motion

for summary disposition. As to the injunction, the trial

court concluded that plaintiffs lacked standing to assert

the claim. As to the claimed exemptions, the trial court

concluded that those issues were moot “because the

disputed emails have been released to the intervenor,”

resulting in a lack of an actual controversy. Finally, the

trial court concluded that “any emails generated

through the District’s email system, that are retained

or stored by the district, are indeed ‘public records’

subject to FOIA....”Plaintiffs now appeal.

II. STANDARD OF REVIEW

The issue before us is one of statutory interpretation

and arises in the context of a summary disposition

motion. We review de novo both issues of statutory

interpretation and a trial court’s decision to grant

summary disposition. Mich Federation of Teachers v

Univ of Mich, 481 Mich 657, 664; 753 NW2d 28 (2008).

III. ANALYSIS

The issue before us requires us to consider the applica-

tion of the FOIA statute, adopted in 1977 and last

amended in 1997, in the context of today’s ubiquitous

e-mail technology. This is a challenging issue and one that,

as we noted at the outset, we believe is best left to the

Legislature because it is plainly an issue concerning social

policy. Unfortunately, until the Legislature makes its

intention clear by adopting statutory language that takes

this technology into account, we must attempt to discern,

as best we can given the tools available to us, what the

intent of the Legislature would have been under the

circumstances presented by this technology that it could

not have foreseen. Cf. Denver Publishing Co v Bd of Co

Comm’rs of Arapahoe, Colorado, 121 P3d 190, 191-192

234 287 M

ICH

228 [Jan

(Colo, 2005). We find ourselves in the situation akin to

that of a court being asked to apply the laws governing

transportation adopted in a horse and buggy world to the

world of automobiles and air transportation.

“Consistent with the legislatively stated public policy

supporting the act, the Michigan FOIA requires disclosure

of the ‘public record[s]’ of a ‘public body’ to persons who

request to inspect, copy, or receive copies of those re-

quested public records.” Mich Federation of Teachers, 481

Mich at 664-665. It is undisputed that defendants are

public bodies. MCL 15.232(d)(iii). A “public record” is “a

writing prepared, owned, used, in the possession of, or

retained by a public body in the performance of an official

function, from the time it is created.”

MCL 15.232(e).

Plaintiffs have specifically limited their appeal to

whether the trial court properly concluded that all

e-mails generated through defendants’ e-mail system

that are retained or stored by defendants are public

records subject to FOIA.

Although unnecessary for the resolution of this case, we wish to

address the suggestion of amicus curiae Mackinac Center for Public

Policy that the “it” in the clause “from the time it is created” refers to the

public body. The amicus asserts that interpreting the “it” as a writing

would cause the overruling of Detroit News, Inc v Detroit, 204 Mich App

720; 516 NW2d 151 (1994). However, this ignores that Detroit News

explicitly interpreted the “it” as meaning a writing:

The city relies on the statutory clause “from the time it is created”

found in the definition of public record. We do not construe this clause

as requiring that a writing be “owned, used, in the possession of, or

retained by a public body in the performance of an official function”

from the time the writing is created in order to be a public record. A

writing can become a public record after its creation. We understand

the phrase “from the time it is created” to mean that the ownership,

use, possession, or retention by the public body can be at any point

from creation of the record onward. [Id. at 725.]

Accordingly, we reject the suggested interpretation.

Thus, we are not ruling on whether any exemptions apply or who has

the standing to argue them.

2010] H

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The trial court determined that the personal e-mails

are public records because they are “in the possession

of, or retained by” defendants. See MCL 15.232(e).

However, “mere possession of a record by a public body”

does not render the record a public document. Detroit

News, Inc v Detroit, 204 Mich App 720, 724; 516 NW2d

151 (1994). Rather, the use or retention of the docu-

ment must be “in the performance of an official func-

tion.” See id. at 725; MCL 15.232(e). For the e-mails at

issue to be public records, they must have been stored

or retained by defendants in the performance of an

official function.

Defendants argue that retention of electronic data is

an official function where it is required for the opera-

tion of an educational institution, citing Kestenbaum v

Mich State Univ, 414 Mich 510; 327 NW2d 783 (1982).

However, the lead opinion in Kestenbaum “accept[ed]

without deciding” that the electronic data at issue was

a public record. Id. at 522 (F

ITZGERALD

, C.J.). Only

Justice R

YAN

’s opinion addressed the issue of “an offi-

cial function.” Id. at 538-539 (R

YAN

, J.). Justice R

YAN

concluded that the magnetic tape involved, which was

the school’s purposefully created and retained record of

student names and addresses, was, in fact, “prepared,

owned, used, processed, and retained by the defendant

public body ‘in the performance of an official function’ ”

because the university could not have functioned

“ ‘without such a list of students.’ ” Id. at 539.

In the present case, defendants can function without

the personal e-mail. There is nothing about the personal

e-mail, given that by their very definition they have

nothing to do with the operation of the schools, which

indicates that they are required for the operation of an

Kestenbaum was a three to three decision and has no majority

opinion.

236 287 M

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228 [Jan

educational institution. Thus, we decline to conclude that

they are equivalent to the student information at issue in

Kestenbaum. Furthermore, “unofficial private writings

belonging solely to an individual should not be subject to

public disclosure merely because that individual is a state

employee.” Id. We believe the same is true for all public

body employees. Absent specific legislative direction to do

so, we are unwilling to judicially convert every e-mail ever

sent or received by public body employees into a public

record subject to FOIA.

Defendants offer a simple solution approach to this

puzzle, which is to simply say that anything on the

school’s computer system is “retained” by the school

and therefore subject to FOIA. However, the school

district does not assert that its back-up system was

purposely designed to retain and store personal e-mail

or that personal e-mail has some official function. It

appears that the system is intended to retain and store

e-mail relating to official functions, but that it is simply

easier technologically to capture all the e-mail on the

system rather than have some mechanism to distin-

guish them. We do not think that because the techno-

logical net used to capture public record e-mail also

automatically captures other e-mails we must conclude

that the other e-mails are public records.

To rule as

defendants request would essentially render all per-

sonal e-mail sent by governmental employees while at

work subject to public release upon request. We con-

clude that this was not the intent of the Legislature

when it passed FOIA.

Indeed, we should not presume that the question would even end with

personal e-mail sent on government computers. At oral argument,

defendants would not concede that employees’ personal e-mail would not

be subject to FOIA even if the employees sent it on their personal laptop

computers if, because the laptops used a government wireless system, the

e-mail was captured and retained.

2010] H

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E-mail has in essence replaced mailboxes and paper

memos in government offices. Schools have tradition-

ally, as part of their function, provided teachers with

mailboxes in the school’s main office. However, we have

never held nor has it even been suggested that during

the time those letters are “retained” in those school

mailboxes they are automatically subject to FOIA. Now,

instead of physical mailboxes, we have e-mail. However,

the nature of the technology is such that even after the

e-mail letter has been “removed from the mailbox” by

its recipient, a digital copy of it remains, possibly in

perpetuity. This effect is due solely to a change in the

technology being used and, absent some showing that

the retention of personal e-mail has some official func-

tion other than the retention itself, we decline to so

drastically expand the scope of FOIA. We do not suggest

that a change in technology cannot be a part of the

circumstances that would result in a significant change

in the scope of a statute. However, where the change in

technology is the sole factor, we should be very cautious

in expanding the scope of the law.

This position is consistent with federal cases inter-

preting whether an item is an “agency record” under

the federal FOIA.

In Bloomberg, LP v United States

Securities & Exch Comm, 357 F Supp 2d 156 (D DC,

2004), the court determined that the electronic calen-

dar for the chairman of the Securities and Exchange

Commission (SEC) was not an “agency record.” Id. at

164. This was true even though the calendar included

both personal and business appointments and “the

calendar was maintained on the agency computer sys-

“Federal court decisions regarding whether an item is an ‘agency

record’ under the federal FOIA are persuasive in determining whether a

record is a ‘public record’ under the Michigan FOIA.” MacKenzie v Wales

Twp, 247 Mich App 124, 129 n 1; 635 NW2d 335 (2001).

238 287 M

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228 [Jan

tem and backed-up every thirty days....” Id. The

plaintiff had argued that the backing-up process inte-

grated the calendar into the agency record system. Id.

The SEC countered that employees were “permitted

‘limited use of government office equipment for per-

sonal needs’ ” and that the routine back-up system did

“not distinguish between personal and SEC business-

related documents.” Id. In making its determination,

the court reiterated that “ ‘employing agency resources,

standing alone, is not sufficient to render a document

an ‘agency record.’ ” Id. (citation omitted).

The e-mails in the present case are analogous to the

electronic calendar and other personal uses of SEC office

equipment. Defendants’ storage and retention of personal

e-mails is a byproduct of the fact that all e-mail is

electronically retained, regardless of whether it was per-

sonal or business-related. We are not persuaded that

personal e-mails are rendered “public records” under

FOIA merely by use of a public body’s computer system to

send or receive those e-mails or by the automatic back-up

system that causes the public body to “retain” those

e-mails.

Contrary to Zarko’s position, our determination that

personal e-mails are not public records does not render

We note that the United States Supreme Court has granted certiorari in

the case of City of Ontario, California v Quon, 558 US ___; 130 S Ct 1011;

175 L Ed 2d 617 (2009). While that case involves an issue of privacy raised

by new communications technology, it is unlikely to have any bearing on this

case. In Quon, the city had an informal policy of allowing its employees to

use their city-supplied pagers for personal text messaging provided the

employee paid the extra cost of service. Quon v Arch Wireless Operating Co,

Inc, 529 F3d 892, 897 (CA 9, 2008). Despite assurances that the city would

not review the contents of the personal text messages, the city did so and an

employee brought an action claiming violation of his Fourth Amendment

right to be protected against unreasonable searches and seizures. Id.at

897-898. Because Quon involves the Fourth Amendment and not FOIA, it is

unlikely to answer the question now before us.

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MCL 15.243(1)(a) nugatory. MCL 15.243(1)(a) provides

that public records may be exempt from disclosure

where they contain “[i]nformation of a personal nature

if public disclosure of the information would constitute

a clearly unwarranted invasion of an individual’s pri-

vacy.” As Justice R

YAN

noted in his opinion in Kesten-

baum, 414 Mich at 539 n 6, “[t]he question whether a

writing is a ‘public document’ or a private one not

involved ‘in the performance of an official function’ is

separate and distinct from the question whether the

document falls within the so-called ‘privacy exemp-

tion’....” Implicit in this statement is that some

documents are not public records because they are

private while other documents are public records but

will fall within the privacy exemption.

For example, personal information that falls within

this exclusion includes home addresses and telephone

numbers. Mich Federation of Teachers, 481 Mich at 677.

Thus, when someone makes a FOIA request for an

employee’s personnel file, the personnel file is a public

record, Bradley v Saranac Community Sch Bd of Ed,

455 Mich 285, 288-289; 565 NW2d 650 (1997), but the

employee’s home address and telephone number may

be redacted because they are subject to the privacy

exclusion in MCL 15.243(1)(a). The employee’s home

address and telephone number are examples of private

information contained within a public record. In con-

trast, an e-mail sent by a teacher to a family member or

friend that involves an entirely private matter such as

carpooling, childcare, lunch or dinner plans, or other

personal matters, is wholly unrelated to the public

body’s official function. Such e-mails simply are not

public records.

We recognize that the present case is distinguishable

from Bloomberg, where limited use of the office equip-

240 287 M

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ment for “personal needs” was expressly permitted,

because defendants’ employees have no such permis-

sion. Before logging into defendants’ computer system,

users are greeted by the following statement:

This is a Howell Public Schools computer system. Use of

this system is governed by the Acceptable Use Policy which

may be viewed at http://www.howellschools.com/aup.html.

All data contained on any school computer system is

owned by Howell Public Schools, and may be monitored,

intercepted, recorded, read, copied, or captured in any man-

ner by authorized school personnel. Evidence of unauthorized

use may be used for administrative or criminal action.

By logging into this system, you acknowledge your

consent to these terms and conditions of use. [Emphasis

added.]

Defendants’ acceptable use policy provides, in rel-

evant part:

Howell Public Schools provides technology in further-

ance of the educational goals and mission of the District. As

part of the consideration for making technology available

to staff and students, users agree to use this technology

only for appropriate educational purposes....

***

Email is not considered private communication. It may

be re-posted. It may be accessed by others and is subject to

subpoena. School officials reserve the right to monitor any

or all activity on the district’s computer system and to

inspect any user’s email files. Users should not expect that

their communications on the system are private. Confiden-

tial information should not be transmitted via email.

***

Appropriate use of district technology is defined as a use to

further the instructional goals and mission of the district.

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Members should consider any use outside these instructional

goals and mission constitutes potential misuse....

***

Members are prohibited from...[u]sing technology for

personal or private business,...orpolitical lobbying....

Defendants argue that their acceptable use policy

notified users that personal e-mail was subject to FOIA.

We disagree. Although the use policy certainly gives

notice to the users that school officials may look at their

e-mail, and that the documents could be released pur-

suant to a subpoena, it in no way indicates that users’

e-mail may be viewed by any member of the public who

simply asks for it. Thus, we conclude that the public

employees’ agreement to this acceptable use policy did

not render their personal e-mail subject to FOIA.

Furthermore, we are not persuaded that a public

employee’s misuse of the technology resources provided

by defendants, by sending private e-mails, renders

those e-mails public records. The acceptable use policy

makes clear that “[a]ppropriate use of district technol-

ogy is defined as a use to further the instructional goals

and mission of the district.” An employee’s use of a

public body’s technology resources for private commu-

nication is clearly not in the furtherance of the instruc-

tional goals of the public body. Although this is an

inappropriate use that could subject the employee to

sanction for violation of the policy, the violation does

not transform personal communications into public

records. Indeed, the fact that the communication is sent

in violation of the use policy militates in favor of the

conclusion that the e-mail is not a public record because

it falls expressly outside the performance of an official

function, i.e. the furtherance of the instructional goals

of the district.

242 287 M

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228 [Jan

Our reasoning is also consistent with Walloon Lake

Water Sys, Inc v Melrose, 163 Mich App 726, 730; 415

NW2d 292 (1987). In Walloon, a letter was sent to the

township supervisor that “pertained in some way to the

water system provided by plaintiff to part of the town-

ship.” Id. at 728. The letter was read aloud at the

township board’s regularly scheduled meeting. Id. at

729. The plaintiff subsequently sought a copy of the

letter under FOIA, but the township refused to provide

it, claiming it was not a public record. Id. This Court

concluded that the letter was a public record because,

“once the letter was read aloud and incorporated into

the minutes of the meeting where the township con-

ducted its business, it became a public record. ‘used...

in the performance of an official function.’ ” Id. at 730.

Thus, the caselaw is clear that purely personal docu-

ments can become public documents based on how they

are utilized by public bodies. However, it is their subse-

quent use or retention “in the performance of an official

function” that rendered them so. In the present case,

the retention of the e-mail by defendants on which the

trial court relied was nothing more than a blanket

saving of all information captured through a back-up

system that did not distinguish between e-mail sent

pursuant to the district’s educational goals and that

sent by employees for personal reasons. The back-up

system did not constitute an “official function” suffi-

cient to render the e-mails public records subject to

FOIA. See Bloomberg, 357 F Supp 2d at 164.

In reaching our decision, we have also considered two

unpublished cases in which our Court has addressed

issues that may be relevant. These cases are not prece-

dential authority. However, given the limited published

caselaw on the issue and the issue’s significance, we

have reviewed them for guidance. In WDG Investment

Co v Mich Dep’t of Mgt & Budget, unpublished opinion

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per curiam of the Court of Appeals, issued October 25,

2002 (Docket No. 229950), a rejected bidder on a

government project sued the state Department of Man-

agement and Budget (DMB), alleging fraud in the

manner in which the bid was awarded. A second count

in the action sought production, under FOIA, of the

individual notes written by bid reviewing board mem-

bers concerning the bids. The DMB asserted that it had

no obligation to provide the notes because they were

“personal” and not kept in the DMB files. This Court

held that the notes were public records. We specifically

noted that the defendants’ use of the word “personal”

was undefined and vague, stating “[i]t is not at all clear

from the record what defendants mean by ‘personal’

notes. We therefore decline to address this argument at

this time.” Id., unpub op at7n4.Thus, the case can

offer only limited guidance. However, to the degree it is

helpful, it indicates that individual notes taken by a

decisionmaker on a governmental issue are still public

records when they were taken in furtherance of an

official function. This does not suggest, however, that

notes sent from one governmental employee to another

about a matter not in furtherance of an official function

are also public records.

A similar approach was followed in Hess v City of

Saline, unpublished opinion per curiam of the Court of

Appeals, issued May 12, 2005 (Docket No. 260394),

which involved the use of video cameras to record a city

council meeting. At some point, the council adjourned

but the video camera was not turned off and it recorded

conversations among city staffers who remained in the

council chambers talking for some time after the coun-

cil members had left. A copy of the videotape of the

staffers’ postmeeting conversations was sought under

FOIA. We held that “the unedited videotape was not a

public record.... [as] no official city business was

244 287 M

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228 [Jan

conducted during that time” despite the fact that the

city retained the unedited tape. Id., unpub op at 2. The

inadvertent taping of the conversations in Hess was due

to human error in forgetting to turn off the recorder.

The “taping” of the personal e-mail in this case was

similarly inadvertent because, as a result of the nature

of the capture technology, the recorder can never be

turned off.

This is not to say that personal e-mails cannot

become public records. For example, were a teacher to

be subjected to discipline for abusing the acceptable use

policy and personal e-mails were used to support that

discipline, the use of those e-mails would be related to

one of the school’s official functions—the discipline of a

teacher—and, thus, the e-mails would become public

records subject to FOIA. This is consistent with Detroit

Free Press, Inc v Detroit, 480 Mich 1079 (2008). It is

common knowledge that underlying that case was a

wrongful termination lawsuit that resulted in a multi-

million dollar verdict against the city of Detroit. During

the course of the lawsuit and subsequent settlement

negotiations, certain text messages became public,

which had been sent between the Detroit mayor and a

staff member through the staff member’s city-issued

mobile device. The text messages indicated that the

mayor and the staff member had committed perjury.

Two newspapers filed FOIA requests for the settlement

agreement from the wrongful termination trial, along

with various other documents. Our Supreme Court

found no error in the trial court’s determination that

the settlement agreement was a public record subject to

disclosure under FOIA. Id. However, the Supreme

Court did not rule that the text messages themselves

were public records. The Court’s order denying leave to

appeal contains no reference to text messages. Rather,

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the order indicated that the documents setting forth the

settlement agreement were subject to FOIA. Id.

Having determined that the personal e-mails are not

“public records” subject to FOIA, the next question is

whether e-mails involving “internal union communica-

tions”

are personal e-mails. We conclude that they are.

Such communications do not involve teachers acting in

their official capacity as public employees, but in their

personal capacity as HEA members or leadership. Thus,

any e-mail sent in that capacity is personal. This

holding is consistent with the underlying policy of

FOIA, which is to inform the public “regarding the

affairs of government and the official acts of...public

employees....”MCL15.231(2). See Walloon, 163 Mich

App at 730 (holding that the purpose of FOIA “must be

considered in resolving ambiguities in the definition of

public record”). The release of e-mail involving internal

union communications would only reveal information

regarding the affairs of a labor organization, which is

not a public body.

IV. CONCLUSION

This is a difficult question requiring that we apply a

statute, whose purpose is to render government trans-

parent, to a technology that did not exist in reality (or

even in many people’s imaginations) at the time the

statute was enacted and that has the capacity to make

“transparent” far more than the drafters of the statute

could have dreamed. When the statute was adopted,

We define “internal union communications” to mean those commu-

nications sent only between or among HEA members and leadership,

involving union business or activities, including contract negotiation,

grievance handling, and voting. Any e-mail involving these topics that is

sent to the district is no longer purely between or among HEA members

and leadership and, therefore, does not fall under this category.

246 287 M

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228 [Jan

personal notes between employees were simply thrown

away or taken home and only writings related to the

entity’s public function were retained. Thus, we con-

clude that the statute was not intended to render all

personal e-mails public records simply because they are

captured by the computer system’s storage mechanism

as a matter of technological convenience.

Accelerating communications technology has greatly

increased tension between the value of governmental

transparency and that of personal privacy. As we stated

at the outset, the ultimate decision on this important

issue must be made by the Legislature and we invite it

to consider the question. However, on the basis of the

statute adopted in 1977, the technology that existed at

that time, and the caselaw available to us, we conclude

that the trial court erred in its conclusion that all

e-mails captured in a government e-mail computer

storage system, regardless of their purpose, are ren-

dered public records subject to FOIA.

We reverse and remand for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

No costs, a public question being involved.

Although the question is not before us, we note that an e-mail

transmitted in performance of an official function would appear to be a

public record under FOIA.

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AUTO-OWNERS INSURANCE COMPANY

v FERWERDA ENTERPRISES, INC (ON REMAND)

Docket No. 277574. Submitted November 17, 2009, at Lansing. Decided

January 28, 2010, at 9:00 a.m.

Auto-Owners Insurance Company brought an action in the Mason

Circuit Court, seeking a determination regarding its liability to its

insured, Ferwerda Enterprises, Inc., doing business as Holiday Inn

Express Ludington (Holiday Inn), under a commercial general

liability insurance policy for injuries sustained by Daryl and

Melissa Bronkema and their three minor children. The Bronkemas

were exposed in Holiday Inn’s indoor-pool building to gas from

chlorine and muriatic acid that had formed in the system that

filters, heats, and sanitizes the pool water. Holiday Inn filed a

counterclaim, alleging breach of contract, estoppel, and waiver and

seeking attorney fees and penalty interest. The court, Richard I.

Cooper, J., granted summary disposition in favor of Holiday Inn,

determining that the Bronkemas’ personal injury claims fell

within the scope of the policy, specifically the heating equipment

exception to the policy’s pollution exclusion. The court entered a

judgment in favor of Holiday Inn on its breach of contract claim

and its claim that Auto-Owners owed it a duty to defend and

indemnify against the Bronkemas’ underlying personal injury

lawsuit and awarded costs and attorney fees. The court also

awarded the Bronkemas attorney fees and costs and awarded

penalty interest to Holiday Inn and the Bronkemas. Auto-Owners

appealed, and Holiday Inn cross-appealed with regard to the

dismissal of its counterclaims based on waiver and estoppel. The

Court of Appeals, B

ANDSTRA

and G

LEICHER

, JJ., reversed the trial

court’s holding that the heating equipment exception provided

coverage and that, as a result, Auto-Owners was obligated to

defend and indemnify Holiday Inn in the underlying suit. Instead,

the Court of Appeals held that the language of the policy was

ambiguous and could be construed to include or exclude coverage

for the incident and, therefore, the meaning of the policy should be

ascertained by the fact-finder. The Court of Appeals also held that

questions of fact existed regarding whether the chemicals used in

the treatment of the pool water were pollutants subject to the

pollution exclusion provision of the policy. Finally, the Court of

248 287 M

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248 [Jan

Appeals affirmed the dismissal of Holiday Inn’s claims of waiver

and estoppel and, while not specifically discussing Auto-Owners’

claim that the trial court erred by awarding attorney fees to

Holiday Inn and the Bronkemas, reversed that holding. 283 Mich

App 243 (2009). Judge O’C

ONNELL

, dissenting, stated that the policy

was unambiguous and should be construed to provide coverage for

the incident. Holiday Inn and the Bronkemas sought leave to

appeal and Auto-Owners filed a cross-application for leave to

appeal. The Supreme Court, in lieu of granting leave to appeal,

reversed the judgment of the Court of Appeals and remanded the

case to the Court of Appeals for consideration of whether the trial

court properly assessed the attorney fees and penalty interest

against Auto-Owners. The Supreme Court also held that the

circuit court correctly granted summary disposition in favor of the

defendants because the policy unambiguously provided coverage

for defendants’ claim and, therefore, the Supreme Court also

reinstated the circuit court’s judgment. 485 Mich 905 (2009).

On remand, the Court of Appeals held:

1. Given the trial court’s explicit statement that the suit was

not frivolous and that there was law supporting plaintiff’s posi-

tion, attorney fees were not properly awarded under MCR 2.625

(A)(2). Plaintiff does not appear to have brought the litigation for

an improper purpose. The trial court erred by awarding defen-

dants attorney fees.

2. The trial court erred by awarding penalty interest. The

“reasonably in dispute” language in MCL 500.2006(4) applies to

third-party tort claimants. The breach of contract claim in this

case is specifically tied to the underlying third-party tort claim.

The claim was reasonably in dispute and, therefore, the nonpay-

ment of the underlying tort claim was not an unfair trade practice.

In addition, the Bronkemas are not entitled to collect on the

underlying judgment because that judgment was reversed on

appeal. The awards of attorney fees and penalty interest must be

reversed and the case must be remanded to the trial court for

further proceedings.

Reversed and remanded.

Gross & Nemeth, P.L.C. (by James G. Gross), and

Lincoln G. Herweyer, P.C. (by Lincoln G. Herweyer), for

Auto-Owners Insurance Company.

Varnum LLP (by Mark S. Allard and April H.

Sawhill), for Ferwerda Enterprises, Inc.

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Gee & Longstreet LLP (by Bruce W. Gee) for Daryl,

Jackson T., Caleb A., Savannah J., and Melissa

Bronkema.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and G

LEICHER

JJ.

ON REMAND

O’C

ONNELL

,P.J. This case is on remand from the

Supreme Court.

On remand, this Court is charged with

determining whether the trial court erred in assessing

attorney fees and penalty interest against Auto-Owners

Insurance Company (Auto-Owners). We reverse the

award of attorney fees and penalty interest and remand

this case to the trial court for further proceedings.

I. UNDERLYING FACTS AND PROCEEDINGS

This Court’s initial opinion contains a concise state-

ment of the events that led to the instant litigation:

The Holiday Inn Express Ludington offers its guests the

use of a swimming pool, located in a building attached to the

hotel. The equipment used to operate the pool includes a

water pump, polyvinyl chloride (PVC) lines that carry pool

water to and from the water pump, a boiler that heats the

pool water, and a device called a Rola-Chem that dispenses

chemicals into the pool water. The pump propels pool water

through the PVC lines into the filter and then into the boiler,

which heats the water. From the boiler, the warmed water

travels to the Rola-Chem, which injects chlorine and muriatic

acid, and the pump then pushes the warmed, chemically

treated water back into the pool. An affidavit signed by

Jeffrey Curtis, Holiday Inn’s general manager, describes the

mechanical equipment as “an integrated system that filters,

heats, and sanitizes the indoor pool water.”

Auto-Owners Ins Co v Ferwerda Enterprises, Inc, 485 Mich 905 (2009).

250 287 M

ICH

248 [Jan

The boiler used to heat the pool water serves as the

primary source of heat for the entire pool building. Curtis’s

affidavit explains, “There are no heat ducts from any

source in the pool pump room. The sole source of heat for

the pump room is the heat given off by the integrated pipe

and boiler system.” Gerald Gregorski, a mechanical engi-

neer, also supplied an affidavit, which attested that the pool

“lose[s] heat through the processes of convection and

evaporation,” and as a result heats the air space in the

building housing the pool. Gregorski’s affidavit continues,

“Because of heat loss through convection and evaporation,

pools require the use of a heater to maintain a constant

water temperature. A system that pumps pool water into a

boiler to heat the water and pumps the heated water back

into the pool heats the building where the pool is located.”

Plaintiff retained engineer Michael T. Williams to inspect

the Holiday Inn’s pool equipment. At his deposition, Will-

iams conceded that “the only source of heat for the pool

building at issue in this litigation in the Holiday Inn

Express that requires the use of equipment is the heating

of the pool water by the boiler in the utility room.”

Williams expressed that apart from solar heat entering the

pool room’s windows, he did not know of any source of heat

besides the boiler.

On April 9, 2004, an elbow in the PVC line “blew out.”

A Holiday Inn maintenance man repaired it, but did not

turn off the Rola-Chem “feeder system” while completing

the repair. Gases created by the continuously flowing

chlorine and muriatic acid formed in the PVC lines. When

the maintenance man successfully repaired the elbow and

powered the system back on, a cloud of gas traveled

through the PVC lines, entered the pool area, and injured

the Bronkema family. [Auto-Owners Ins Co v Ferwerda

Enterprises, Inc, 283 Mich App 243, 245-246; 771 NW2d

434 (2009), rev’d and remanded 485 Mich 905 (2009).]

The Bronkemas filed a personal injury action against

Holiday Inn, adding Rola-Chem as a defendant after

Holiday Inn filed notice of non-party fault. Holiday Inn

was insured by a policy issued by Auto-Owners. The

2010] A

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policy contained a pollution exclusion, which precluded

coverage for bodily injury or property damage resulting

from the actual or threatened release of pollutants at or

from any premises owned, occupied, or controlled by the

insured.

Initially, Auto-Owners paid approximately $10,000 in

medical expenses for the Bronkemas, but ultimately

declined to defend and indemnify Holiday Inn in the

suit brought by the Bronkemas. Auto-Owners con-

cluded that the pollution exclusion precluded coverage

for the injuries suffered by the Bronkemas, reasoning

that the flow of chlorine and muriatic acid into the pool

area constituted a release of pollutants.

In October 2005, Auto-Owners filed a declaratory

judgment action, naming Holiday Inn and the

Bronkema family as defendants and arguing that it had

no duty to defend and indemnify Holiday Inn in the

underlying suit because the pollution exclusion pre-

cluded coverage. Holiday Inn filed a counterclaim, al-

leging breach of contract, estoppel, and waiver, and

requesting attorney fees and penalty interest.

Auto-Owners moved for summary disposition pursu-

ant to MCR 2.116(C)(10), arguing that no genuine issue

of fact existed regarding the exclusion of the Bronkema

family’s claims under the pollution exclusion. Holiday

Inn filed a cross-motion for summary disposition pur-

suant to MCR 2.116(C)(8), (9), and (10), arguing that an

endorsement to its policy, known as the “heating equip-

ment exception,” provided coverage for the claims. This

exception provided that the pollution exclusion did not

apply to a claim for bodily injury if such injury was

“sustained within a building at such premises, site or

location and caused by smoke, fumes, vapor or soot

from equipment used to heat a building at such pre-

mises, site or location.” Holiday Inn argued that be-

252 287 M

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248 [Jan

cause the pool filtering and water heating mechanisms

were part of an integrated system, and because this

system was the source of heat for the pool building, the

incident fell within the heating equipment exception to

the pollution exclusion.

The trial court held a hearing on the motions for

summary disposition on June 30, 2006. At the conclu-

sion of the hearing, the trial court granted Holiday

Inn’s motion, finding that the heating equipment ex-

ception applied and that Auto-Owners had a duty to

defend and indemnify Holiday Inn in the underlying

suit. Subsequently, Holiday Inn moved for summary

disposition on its counterclaims. Holiday Inn asserted

that it sought attorney fees as a sanction because

Auto-Owners had misquoted the policy in a letter and

Auto-Owners’ position had no support in fact or law.

The trial court found that Auto-Owners’ position was

arguable, but awarded attorney fees to Holiday Inn

notwithstanding that conclusion. The trial court denied

Holiday Inn’s motion for summary disposition on the

counterclaims of estoppel and waiver. Finally, the trial

court granted the Bronkemas their attorney fees.

The suit filed by the Bronkemas went to trial in

September 2006, and the jury returned a verdict in

favor of the Bronkemas. On December 20, 2006, the

trial court entered a final judgment awarding the

Bronkemas $528,935.91 plus interest.

Holiday Inn appealed as of right the jury verdict. In Bronkema v

Ferwerda Enterprises, Inc, unpublished opinion per curiam of the Court

of Appeals, issued April 21, 2009 (Docket No. 275528), this panel vacated

the judgment, finding that the trial court erred by granting a directed

verdict on the issue of negligence. This panel also reversed the trial

court’s grant of summary disposition in favor of Rola-Chem on Holiday

Inn’s cross-claim and remanded for a new trial and other proceedings. Id.

Our Supreme Court denied Rola-Chem’s application for leave to appeal.

Bronkema v Ferwerda Enterprises, Inc, 485 Mich 927 (2009).

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Holiday Inn filed another motion for summary dis-

position on its claims for penalty interest and breach of

contract and sought a hearing on attorney fees. The

trial court found that Auto-Owners breached its con-

tract because it was obligated to defend and indemnify

Holiday Inn and because it had failed to pay the jury

verdict. The trial court awarded penalty interest at the

rate of 12 percent on both the judgment and the

attorney fees awarded.

In a final order entered on February 22, 2007, the

trial court awarded Holiday Inn $186,127.44 in attor-

ney fees and costs and $528,935.91 for breach of con-

tract by Auto-Owners, and it awarded the Bronkemas

$71,365.72 in attorney fees and costs. Finally, the trial

court awarded penalty interest under MCL 500.2006 on

all amounts awarded.

II. APPELLATE PROCEEDINGS

Auto-Owners appealed to this Court, arguing that (1)

the trial court erred by holding that Auto-Owners was

required to defend and indemnify Holiday Inn in the

underlying suit because the heating equipment excep-

tion in Holiday Inn’s policy applied and thus coverage

was not precluded; (2) the trial court erred by awarding

attorney fees to Holiday Inn and the Bronkemas on the

basis that the trial court found for Holiday Inn and the

Bronkemas on the issue of coverage; and (3) the trial

court erred by awarding penalty interest to Holiday Inn

and the Bronkemas on the judgment amounts. Holiday

Inn filed a claim of cross-appeal, arguing that the trial

court erred by dismissing its claims of waiver and

estoppel.

In our previous opinion in this case, a majority of this

panel reversed the trial court’s holding that the heating

equipment exception provided coverage under the

254 287 M

ICH

248 [Jan

policy and that as a result, Auto-Owners was obligated to

defend and indemnify Holiday Inn in the underlying suit.

Auto-Owners Ins Co, 283 Mich App at 244-245. Instead,

the majority held that the language of the insurance

contract was ambiguous and could be construed to include

or exclude coverage for the incident; therefore, the mean-

ing of the insurance contract should be ascertained by the

fact-finder. Id. at 252-253. In addition, the majority held

that questions of fact existed regarding whether the

chemicals used in the treatment of the pool water were

pollutants brought onto the premises by the insured and

thus were subject to the pollution exclusion provision of

the policy. Id. at 254-256. Finally, the majority affirmed

the trial court’s dismissal of Holiday Inn’s claims of

waiver and estoppel. Id. at 245, 256-258. The majority did

not specifically discuss the claim by Auto-Owners that the

trial court erred by awarding attorney fees to Holiday Inn

and the Bronkemas, but reversed that holding as well. Id.

at 245. The dissent stated that the policy was unambigu-

ous and therefore should be construed to provide coverage

for the incident. Id. at 258-263 (O’C

ONNELL

,P.J., dissent-

ing).

Holiday Inn and the Bronkemas sought leave to

appeal to our Supreme Court. Auto-Owners filed a

cross-application for leave to appeal. In lieu of granting

leave to appeal, our Supreme Court reversed our judg-

ment in Auto-Owners Ins Co, 283 Mich App 243, and

remanded to this panel “for consideration of whether

the trial court properly assessed attorney fees and

penalty interest against plaintiff, Auto-Owners Insur-

ance Company.” Auto-Owners Ins Co, 485 Mich 905.

Our Supreme Court also reinstated the circuit court’s

judgment, explaining, “The circuit court correctly

granted summary disposition in favor of the defendants

because the subject policy unambiguously provided cov-

erage for the defendants’ claim.” Id.

2010] A

UTO

-O

WNERS V

ERWERDA

EMAND

) 255

III. ANALYSIS ON REMAND

Auto-Owners argued in its original appeal to this

Court that the trial court erred by assessing attorney

fees and penalty interest. Our original opinion did not

address these issues.

A. ATTORNEY FEES

“As a general rule, an award of attorney fees as an

element of costs or damages is prohibited unless it is

expressly authorized by statute or court rule.” Windemere

Commons I Ass’n v O’Brien, 269 Mich App 681, 683; 713

NW2d 814 (2006). Defendants claim that they were

awarded attorney fees as a sanction under MCR

2.625(A)(2) because plaintiff filed a frivolous claim and

such an award is mandatory under the rule. In making its

decision, the trial court stated:

I’m still agreeing with Auto-Owners that you have an

arguable situation here and, in fact, the law even to my

surprise would favor Auto-Owners’ position.

However, this idea that the, that Auto-Owners also was

tagging the situation bearing in mind that they would have

been aware of the heating unit exclusion and yet that was

never put on the table except, except through the brief.

This brings me round circle to what [Holiday Inn’s]

attorney [Mark] Allard is saying that if you have a case and

the Court is asked to award attorney fees and there’s a

request for sanctions, yes, if it’s frivolous, the Court would

deal with that standard. But I don’t find it to be frivolous.

But as far as based in law, I am persuaded by the

arguments today that this aspect of law somehow did not

get properly focused by Auto-Owners until much, much

more recently.

***

256 287 M

ICH

248 [Jan

I think that someplace along the line that as a matter of

law that the case was argued from the wrong policy

language.

And so the American Rule notwithstanding, I think we

have an argument that failed as a matter of law; so the

Court does rule in favor of [Holiday Inn] on the attorney

fee issue.

The trial court stated that although the suit was not

frivolous, because plaintiff took too long before it ad-

dressed the heating equipment exception, the court

would still award attorney fees to defendants. Given the

trial court’s explicit statement that the suit was not

frivolous and that there was law supporting plaintiff’s

position, attorney fees were not properly awarded.

According to the plain language of the court rule, a trial

court may only award attorney fees “if the court

finds...that an action or defense was frivolous ....”

MCR 2.625(A)(2) (emphasis added).

Defendants also cite Mich Ed Employees Mut Ins Co

v Turow, 242 Mich App 112, 118-119; 617 NW2d 725

(2000), for the proposition that attorney fees can be

awarded against an insurance company under MCR

2.114(E) or (F) for initiating a declaratory judgment

action for an improper purpose. However, plaintiff

does not appear to have brought the instant litigation

for an improper purpose. Holiday Inn’s counsel even

represented to the trial court that he was not claim-

ing that the lawsuit was filed to harass Holiday Inn.

Moreover, the trial court noted that it found some

support for plaintiff’s position. This case involved a

heating equipment exception that had not yet been

addressed by Michigan courts, in addition to questions

regarding where Michigan stood regarding the applica-

tion of the “absolute pollution exclusion.” Accordingly,

2010] A

UTO

-O

WNERS V

ERWERDA

EMAND

) 257

we conclude that the trial court erred by awarding

defendants attorney fees.

B. PENALTY INTEREST

Defendants brought the claim for penalty interest as

part of a motion for summary disposition. Defendants

claimed that they are entitled to penalty interest be-

cause plaintiff breached its contract of insurance with

defendants. We conclude that the trial court erred by

awarding penalty interest.

MCL 500.2006 provides, in pertinent part:

(1) A person must pay on a timely basis to its insured, an

individual or entity directly entitled to benefits under its

insured’s contract of insurance, or a third party tort

claimant the benefits provided under the terms of its policy,

or, in the alternative, the person must pay to its insured, an

individual or entity directly entitled to benefits under its

insured’s contract of insurance, or a third party tort

claimant 12% interest, as provided in [MCL 500.2006(4)],

on claims not paid on a timely basis. Failure to pay claims

on a timely basis or to pay interest on claims as provided in

[MCL 500.2006(4)] is an unfair trade practice unless the

claim is reasonably in dispute.

***

(4) If benefits are not paid on a timely basis the benefits

paid shall 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 claimant is the insured or an

individual or entity directly entitled to benefits under the

insured’s contract of insurance. If the claimant is a third

party tort claimant, then the benefits paid shall bear

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 liability of the insurer for the claim is not reasonably

258 287 M

ICH

248 [Jan

in dispute, the insurer has refused payment in bad faith

and the bad faith was determined by a court of law.

Defendants maintain that pursuant to Griswold

Props, LLC v Lexington Ins Co, 276 Mich App 551; 741

NW2d 549 (2007), whether the issue was reasonably in

dispute is irrelevant. We disagree. The Griswold Court

resolved an ongoing dispute regarding the application

of language in Yaldo v North Pointe Ins Co, 457 Mich

341; 578 NW2d 274 (1998),

recognizing that the “rea-

sonably in dispute” language in MCL 500.2006(4) ap-

plies to third-party tort claimants. Griswold, supra at

566.

Defendants argue that because their award comes

from a breach of contract claim, they are entitled to

penalty interest. We disagree with defendants’ charac-

terization. In this case, the breach of contract claim is

specifically tied to the underlying third-party tort claim.

Indeed, the trial court was exceptionally clear that the

amount of the breach of contract claim exactly matched

that of the judgment in the underlying tort claim. The

trial court only granted a breach of contract claim

award to Holiday Inn because plaintiff had not yet paid

the judgment in the underlying tort claim.

This is a wholly different situation than that found in

the cases where penalty interest was awarded. Griswold

involved three consolidated claims, all of which involved

an insurance company’s failure to pay for the direct

losses of the insured, as opposed to the nonpayment of

The pertinent language in Yaldo stated:

With respect to collection of twelve percent interest, reasonable

dispute is applicable only when the claimant is a third-party tort

claimant. Here, plaintiff is not such a claimant. Rather, he is

seeking reimbursement for the loss of this business due to a fire.

Therefore, plaintiff could have recovered interest at the rate of

twelve percent per annum under the Uniform Trade Practices Act.

[Yaldo, supra at 349.]

2010] A

UTO

-O

WNERS V

ERWERDA

EMAND

) 259

a third-party claim found in this case. Griswold, supra

at 559-561. This case involves an issue of first impres-

sion to Michigan’s jurisprudence. The claim, as shown

by our prior opinions in these cases, was “reasonably in

dispute” and therefore the nonpayment of the claim

was not an unfair trade practice. Moreover, the Bronke-

mas are not entitled to collect on the underlying judg-

ment because that judgment was reversed on appeal.

We reverse the awards of attorney fees and penalty

interest and remand this case to the trial court for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

260 287 M

ICH

248 [Jan

PEOPLE v GIPSON

Docket No. 287324. Submitted January 5, 2010, at Detroit. Decided

January 28, 2010, at 9:05 a.m.

Ted F. Gipson was convicted by a jury in the Macomb Circuit Court,

David F. Viviano, J., of first-degree felony murder and armed

robbery. Defendant appealed.

The Court of Appeals held:

1. The trial court did not abuse its discretion by admitting

evidence that, following the charged offenses, defendant obtained

a tattoo that read “Murder 1” and depicted a chalk outline of a

dead body underneath. The tattoo was relevant to the issues of

defendant’s intent and culpability in the victim’s death and the

probative value of the evidence was not substantially outweighed

by any danger of unfair prejudice.

2. The trial court did not err by determining that the state-

ments defendant made to the police while in police custody were

made voluntarily, knowingly, and intelligently. The trial court did

not err by denying defendant’s motion to suppress the evidence.

Affirmed.

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

Solicitor General, Eric J. Smith, Prosecuting Attorney,

Robert Berlin, Chief Appellate Lawyer, and Jurij Fe-

dorak, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Gail Rodwan) for de-

fendant.

Before: D

AVIS

,P.J., and F

ORT

OOD

and S

ERVITTO

,JJ.

URIAM

. Following a jury trial, defendant was

convicted of first-degree felony murder, MCL

750.316(1)(b), and armed robbery, MCL 750.529. He was

sentenced to concurrent terms of life imprisonment for

2010] P

EOPLE V

IPSON

261

the murder conviction and 285 to 480 months’ imprison-

ment for the robbery conviction. He appeals as of right.

We affirm.

Defendant’s convictions arise from the beating death

of defendant’s drug supplier, David Witting, during a

robbery. Evidence at trial indicated that defendant

arranged a meeting with Witting to purchase drugs.

During the transaction, defendant’s brother, Scott Gip-

son,

emerged from behind a dumpster and struck the

victim on the head with a bottle. Defendant and Gipson

thereafter punched and kicked the victim, who died

from internal bleeding after his spleen ruptured. There

is no dispute that defendant was present during the

assault, and defendant admitted kicking or punching

the victim once or twice, but defendant generally main-

tained that he did not know that Gipson was going to

attack the victim, and defendant claimed that he only

struck the victim when he believed the victim was going

to hit him.

Defendant argues first that the trial court erred in

admitting evidence that, after the charged offenses, he

obtained a tattoo that read “Murder 1” and depicted a

chalk outline of a dead body underneath. Defendant

argues that this evidence was irrelevant and unfairly

prejudicial. We review the trial court’s decision to admit

this evidence for an abuse of discretion, which exists

when the trial court’s decision falls outside the range of

principled outcomes. People v Blackston, 481 Mich 451,

460; 751 NW2d 408 (2008). Generally, “the trial court’s

decision on a close evidentiary question...ordinarily

cannot be an abuse of discretion.” People v Sabin (After

Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).

Because the two brothers share their last name, for convenience we

refer to defendant Ted Floyd Gipson as “defendant” and his brother Scott

Gipson as “Gipson.”

262 287 M

ICH

261 [Jan

Generally, all relevant evidence is admissible. MRE

402; People v Yost, 278 Mich App 341, 355; 749 NW2d

753 (2008). Evidence is relevant if it has any tendency

to make the existence of a fact that is of consequence to

the action more probable or less probable than it would

be without the evidence. MRE 401; Yost, supra at 355.

Even if relevant, evidence may be excluded if its proba-

tive value is substantially outweighed by the danger of

unfair prejudice. MRE 403; Yost, supra at 407. “Unfair

prejudice may exist where there is a danger that the

evidence will be given undue or preemptive weight by

the jury or where it would be inequitable to allow use of

the evidence.” Blackston, supra at 462. The determina-

tion whether evidence should be excluded pursuant to

MRE 403 is best left to the trial court’s contemporane-

ous assessment. Id.

Defendant asserts that there are many possible rea-

sons for the tattoo. Indeed, defendant was able to

present to the jury a number of plausible theories as to

why he obtained the tattoo. Those theories included

referring to his dog, which was shot during the police

raid on his house; and as a reminder of something he

overcame in his life, because he believed he would win

the case and not even be charged with the instant

offenses. However, there was also evidence that defen-

dant altered the tattoo from an outline of a body to the

shape of a dog after being informed that the police

wanted to photograph the tattoo. Furthermore, other

possible reasons are, as argued by the prosecution,

bravado or a symbolic representation of defendant’s

acknowledged connection to the victim’s death. Under

the circumstances, the tattoo was relevant to the issues

of defendant’s intent and culpability in the victim’s

death. Because the prosecution presented significant

other evidence of defendant’s guilt without unduly

focusing on the tattoo evidence, and because defendant

2010] P

EOPLE V

IPSON

263

had the opportunity to present his own explanation of

the tattoo, we do not believe that the probative value of

the tattoo was substantially outweighed by any danger

of unfair prejudice. At the most, it would be a close

question of the kind that we could not deem an abuse of

discretion.

Defendant next argues that statements that he made

while in police custody should have been suppressed

because they were not voluntarily made. Defendant

argues that the statements were given while he was

under the influence of drugs and were coerced by the

police.

Statements of an accused made during custodial

interrogation are inadmissible unless the accused vol-

untarily, knowingly, and intelligently waived his or her

Fifth Amendment rights. Miranda v Arizona, 384 US

436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); People v

Daoud, 462 Mich 621, 633; 614 NW2d 152 (2000). We

review de novo a trial court’s determination that a

waiver was knowing, intelligent, and voluntary. People v

Tierney, 266 Mich App 687, 707-708; 703 NW2d 204

(2005). When reviewing a trial court’s determination of

voluntariness, we examine the entire record and make

an independent determination. People v Shipley, 256

Mich App 367, 372; 662 NW2d 856 (2003). But we

review a trial court’s factual findings for clear error and

will affirm the trial court’s findings unless left with a

definite and firm conviction that a mistake was made.

People v Sexton (After Remand), 461 Mich 746, 752; 609

NW2d 822 (2000). Deference is given to a trial court’s

assessment of the weight of the evidence and the

credibility of the witnesses. Id.

“[W]hether a waiver of Miranda rights is voluntary

depends on the absence of police coercion.” Daoud,

supra at 635. A waiver is voluntary if it was the product

264 287 M

ICH

261 [Jan

of a free and deliberate choice rather than intimidation,

coercion, or deception. Shipley, supra at 373-374. The

voluntariness of a defendant’s statements is deter-

mined by examining the totality of the circumstances

surrounding the interrogation. Daoud, supra at 633-

634. A court should consider factors such as: the dura-

tion of the defendant’s detention and questioning; the

age, education, intelligence, and experience of the de-

fendant; whether there was unnecessary delay of the

arraignment; the defendant’s mental and physical

state; whether the defendant was threatened or abused;

and any promises of leniency. Shipley, supra at 373-374.

Whether a waiver was made knowingly and intelli-

gently requires an inquiry into defendant’s level of

understanding, irrespective of police conduct. Daoud,

supra at 636. A defendant does not need to understand

the consequences and ramifications of waiving his or

her rights. A very basic understanding of those rights is

all that is necessary. Id. at 642. Intoxication from

alcohol or other substances can affect the validity of a

waiver, but is not dispositive. People v Leighty, 161 Mich

App 565, 571; 411 NW2d 778 (1987).

Defendant argued below that his statements were

coerced because the police threatened his mother. He

testified at the Walker

hearing that the police told him

that his mother, who had been taken into custody, was

being detained naked because her clothes were confis-

cated for evidence. They also allegedly told him that if

he spoke, she would be released. Otherwise, she would

be charged with being an accessory to murder. Defen-

dant further testified that during the 24 hours before he

was taken into custody, he drank four to five 40-ounce

beers, ingested approximately 25 Vicodin pills, and

smoked 12 marijuana joints. Conversely, the detectives

People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

2010] P

EOPLE V

IPSON

265

denied making the alleged statements regarding defen-

dant’s mother. They also testified that based on their

experience, defendant did not appear to be under the

influence of alcohol or drugs, and they had no trouble

communicating with defendant.

Defendant does not dispute that at the time his state-

ments were given, he was in his mid-20s, had a GED, had

some limited prior contact with the police, was inter-

viewed within a short time after being taken into custody,

and that his interviews, which were about three hours

apart, lasted approximately an hour each. Defendant’s

suppression motion depended on the trial court’s resolu-

tion of the parties’ conflicting accounts of the circum-

stances surrounding defendant’s interrogations, specifi-

cally whether the police threatened defendant’s mother

and whether defendant was under the influence of drugs

when he gave his statements. In this regard, the trial

court found that Detectives Keith Keitz and Kevin Woods,

who both denied making the alleged statements regarding

defendant’s mother, and who both stated that defendant

did not appear to be under the influence of alcohol or

drugs, were credible. Further, as the trial court observed,

defendant’s admitted ability to lie regarding the amount

of sleep he had and regarding his initial account of his role

in the offense, as well as his ability to change his story to

account for inconsistencies between his and Scott Gip-

son’s account while minimizing his own involvement,

belied defendant’s assertion that he was “in a fog” because

of his intoxication. Considering the totality of the circum-

stances and giving deference to the trial court’s assess-

ment of credibility, the trial court did not err by determin-

ing that defendant’s statements were made voluntarily,

knowingly, and intelligently. Thus, the trial court properly

denied defendant’s motion to suppress.

Affirmed.

266 287 M

ICH

261

PEOPLE v LUCEY

Docket No. 287446. Submitted January 5, 2010, at Lansing. Decided

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

Dennis R. Lucey pleaded guilty to attempted third-degree fleeing and

eluding, MCL 257.602a(3). He was sentenced in the Roscommon

Circuit Court, Michael J. Baumgartner, J., to 17 to 30 months’

imprisonment. This was a departure from the intermediate sanction

specified by the applicable sentencing guidelines and MCL

769.34(4)(a), which requires the sentencing court to state a substan-

tial and compelling reason for imposing a prison sentence on a

defendant whose recommended minimum sentence range has an

upper limit of 18 months or less. In imposing this sentence, the court

considered the fact that defendant was on parole for a previous

offense, but it did not acknowledge on the record that it was

departing from the guidelines. Defendant appealed by delayed leave

granted.

The Court of Appeals held:

1. A sentencing court’s speculation regarding what action the

department of corrections or the parole board might take in the

future with respect to a prisoner or parolee within its jurisdiction

cannot be considered an objective and verifiable fact that could

serve as a substantial and compelling reason to depart from the

sentence recommended under the guidelines.

2. The fact that a defendant might require imprisonment for a

previous sentence is not a substantial and compelling reason to

depart from a guidelines’ recommended intermediate sanction

when sentencing that defendant for a subsequent offense.

3. The arguments raised in defendant’s Standard 4 brief

regarding alleged inaccuracies in the presentence investigation

report and ineffective assistance of counsel are without merit.

Convictions affirmed, sentence vacated, and case remanded for

further proceedings.

1. S

ENTENCES —

ENTENCING

UIDELINES —

NTERMEDIATE

ANCTIONS —

EPAR-

TURES

A court may not sentence a defendant who is entitled to an

intermediate sanction under the sentencing guidelines to prison

EOPLE V

UCEY

267

unless it states on the record a substantial and compelling reason

for the departure (MCL 769.34[3]; 769.34[4][a]).

2. S

ENTENCING —

ENTENCING

UIDELINES —

NTERMEDIATE

ANCTIONS —

RIS-

ONERS AND

AROLEES

A sentencing court’s speculation regarding what action the depart-

ment of corrections or the parole board might take in the future

with respect to a prisoner or parolee within its jurisdiction is not

an objective and verifiable fact that can serve as a substantial and

compelling reason to depart from the sentence recommended

under the guidelines (MCL 769.34[3]).

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

Solicitor General, Mark Jernigan, Prosecuting Attor-

ney, and Anica Letica, Assistant Attorney General, for

the people.

Bart R. Frith and Dennis Lucey, in propria persona,

for defendant.

Before: B

ECKERING

,P.J., and M

ARKEY

and B

ORRELLO

JJ.

URIAM

. Defendant appeals by delayed leave

granted the sentence of 17 to 30 months in prison imposed

on his plea-based conviction of attempted third-degree

fleeing and eluding, MCL 257.602a(3).

We affirm defen-

Defendant apparently pleaded guilty to a charge of attempted third-

degree fleeing and eluding under the general attempt statute, MCL 750.92.

The information and judgment of sentence cites the underlying offense as

MCL 257.602a(3), a violation of the Michigan Vehicle Code. However, the

general attempt statute does not apply to MCL 257.602a(3) because MCL

750.92 only prescribes a criminal penalty when a criminal offense is

attempted and “no express provision is made by law for the punishment of

such attempt.” But MCL 257.602a(1) includes “attempting to flee or elude

[an] officer” as being the substantive offense. The offense is elevated to

third-degree fleeing and eluding by certain aggravating circumstances, or

where the defendant has prior convictions for substantially similar conduct.

MCL 257.602a(3). Moreover, MCL 257.204b(2) provides: “The court shall

impose a criminal penalty for a conviction of an attempted violation of [the

268 287 M

ICH

267 [Feb

dant’s convictions

but remand for resentencing or

rearticulation of a substantial and compelling reason

for departing from the sentencing guidelines.

The sentencing guidelines recommended a minimum

term of 5 to 17 months.

The trial court sentenced

defendant to 17 to 30 months in prison to run consecu-

tively to the sentence for which defendant was serving

parole at the time he committed the instant offenses.

On appeal, defendant argues that the trial court failed

to articulate on the record a substantial and compelling

reason for departing from the sentencing guidelines. We

agree.

Under the statutory sentencing guidelines, a trial

court is generally required to impose a minimum sen-

tence in accordance with the appropriate sentence

Michigan Vehicle Code]...inthesame manner as if the offense had been

completed.” Thus, both third-degree fleeing and eluding and “attempted”

third-degree fleeing and eluding are punishable by “imprisonment for not

more than 5 years.” MCL 257.602a(3). Generally, when a court imposes an

indeterminate prison sentence, the court must set as the top end the

“maximum penalty provided by law....” MCL 769.8. Here, defendant

pleaded guilty with the understanding that his maximum sentence could not

exceed 30 months, one-half the maximum for the completed offense. MCL

750.92(3).

Defendant also pleaded guilty to a charge of operating a motor vehicle

while visibly impaired, MCL 257.625(3), and was sentenced to pay a fine

of $100 and costs of $100.

Defendant’s prior record variable (PRV) score was 140 points (PRV

level F). His offense variable (OV) score was 25 points (OV level III).

Third-degree fleeing and eluding is categorized by the sentencing guide-

lines as a public safety offense and as a class E felony, MCL 777.12e. If

defendant’s guidelines score had been applied to the class E guidelines

grid, MCL 777.66, his guidelines recommended minimum sentence would

have been 14 to 29 months. However, because the conviction was for an

“attempt,” MCL 777.19(3)(b) requires the sentencing court to use the

class H guidelines grid. On the class H guidelines grid, MCL 777.69, the

OV score column tops out at 16+ points and the PRV score row tops out

at 75+ points. The top class H cell provides the recommended minimum

sentence of 5 to 17 months.

2010] P

EOPLE V

UCEY

269

range. MCL 769.34(2). A court may depart from the

range set forth in the guidelines if it states on the record

a substantial and compelling reason for doing so. MCL

769.34(3); People v Harper, 479 Mich 599, 616; 739

NW2d 523 (2007).

The interpretation and application of statutory sen-

tencing guidelines are legal questions that we review de

novo. People v Francisco, 474 Mich 82, 85; 711 NW2d 44

(2006). Whether a factor justifying departure from the

sentencing guidelines exists is a factual determination

for the trial court, which we review for clear error.

People v Babcock, 469 Mich 247, 264; 666 NW2d 231

(2003). We review the issue of whether a particular

factor is objective and verifiable as a matter of law. Id.

We review the determination that the objective and

verifiable factors constitute substantial and compelling

reasons to depart from the guidelines for an abuse of

discretion. Id. at 264-265.

Here, the guidelines recommended a minimum term

range of 5 to 17 months. But, because the upper

recommended minimum sentence range was 18 months

or less, the trial court was required to impose an

intermediate sanction unless it stated on the record a

substantial and compelling reason to sentence defen-

dant to prison. MCL 769.34(4)(a); People v Stauffer, 465

Mich 633, 635-636; 640 NW2d 869 (2002). MCL

769.34(4)(a) provides:

If the upper limit of the recommended minimum sen-

tence range for a defendant determined under the sentenc-

ing guidelines set forth in [MCL 777.1 et seq.] is 18 months

or less, the court shall impose an intermediate sanction

unless the court states on the record a substantial and

compelling reason to sentence the individual to the juris-

diction of the department of corrections. An intermediate

sanction may include a jail term that does not exceed the

270 287 M

ICH

267 [Feb

upper limit of the recommended minimum sentence range

or 12 months, whichever is less.

MCL 769.31(b) defines “intermediate sanction” as “pro-

bation or any sanction, other than imprisonment in a

state prison or state reformatory, that may lawfully be

imposed.” Thus, a prison sentence cannot constitute an

intermediate sanction. Stauffer, 465 Mich at 635; People

v Muttscheler, 481 Mich 372, 375; 750 NW2d 159 (2008).

At sentencing, defense counsel noted that the sen-

tencing guidelines indicated a sentence range of 5 to 17

months, and that a county jail sentence was appropri-

ate. The probation officer explained his recommenda-

tion for a prison sentence:

Officer: Your Honor, it is what the department called a

location departure. That is due to this defendant’s prisoner

status as a parolee and his lack of—his inability to receive

any credit for time served due to parole status. It is

technically called a location departure, your Honor.

The Court: Okay. So he has got to serve the balance of

his sentence on the previous charge before he starts this

one?

Officer: That is correct, your Honor.

Defense counsel countered that defendant’s parole

status and prior criminal record did not provide reasons

for a departure from an intermediate sanction because

they had been accounted for in scoring the guidelines.

The prosecutor contended the guidelines did not ad-

equately account for defendant’s extensive criminal

history and his failures at rehabilitation. After these

arguments, the trial court imposed its sentence as

follows:

I don’t know how we can accomplish it[;] if we sentenced

him to county jail, and he had to finish his parole we could

take him to prison and bring him back. I am not going to go

there. So I am going to sentence you, Mr. Lucey, to a

2010] P

EOPLE V

UCEY

271

location departure, sentence you to not less than seventeen

months nor more than thirty months with the Michigan

Department of Corrections.

***

And you are—this sentence will be consecutive to

completion of the sentence upon which you are under

parole.

Defense counsel informed the court that the court

needed to advise defendant of his right to appeal the

sentence because it represented a departure. The trial

court responded:

I understand. I have already explained that it is not

longer. It is seventeen months. That is what the guidelines

are, five to seventeen. And as indicated, it’s a location

departure. He is going to have to—it is consecutive to

his—consecutive to his current sentence.

I gave those forms to—I have explained that it is a

location departure as indicated that he is going to have to

serve that before he starts his—this sentence. I am not

going to have that situation. Indicate that because he is on

parole status he is not entitled to any credit for time served.

In People v Ratliff, 480 Mich 1108 (2008), our Su-

preme Court suggested that the logistical inconvenience

that may occur when sentencing a parolee to an inter-

mediate sanction does not constitute a substantial and

compelling reason for departure from the sentencing

guidelines. The Court stated in an order in lieu of

granting leave to appeal:

The trial court’s assumption that the defendant would

be required to serve additional prison time on his parole

sentence before serving the instant sentence was not

objective and verifiable, and in fact was erroneous. Fur-

thermore, the possibility of a current prisoner or parolee

serving a sentence in the county jail does not relate to the

272 287 M

ICH

267 [Feb

seriousness of the offense or the culpability of the offender,

and is not a compelling reason to deny the defendant an

intermediate sanction to which he is entitled by statute.

[Id.]

We read the Ratliff order as establishing two prin-

ciples. First, what action the department of corrections

or parole board might take in the future with respect to

a prisoner or parolee within its jurisdiction cannot be

considered an objective and verifiable fact that could

serve as a substantial and compelling reason for depar-

ture from the guidelines’ recommended sentence. See

Babcock, 469 Mich at 256-258. Second, that a defendant

might require imprisonment for a previous sentence is

not a substantial and compelling reason to depart from

a guidelines’ recommended intermediate sanction when

sentencing that defendant for a subsequent offense—in

other words, there is no such thing as a “location

departure.” The fact that a defendant might have to

serve county jail time following additional prison incar-

ceration for a parole violation cannot be a substantial

and compelling reason to depart from the sentencing

guidelines. MCL 769.34(4)(a).

At sentencing, the prosecutor stressed that a depar-

ture was appropriate in light of defendant’s extensive

criminal history, which had not been given adequate

weight by the guidelines. On appeal, the prosecutor

argues that although the trial court did not explicitly

cite defendant’s criminal record as the basis for the

departure, the proximity of its argument to the trial

court’s imposition of its sentence allows for such an

inference. We agree that a court may find that an

offense characteristic or offender characteristic that has

already been taken into account in scoring the guide-

lines but given inadequate or disproportionate weight

provides a substantial and compelling reason for a

guidelines departure. MCL 769.34(3)(b). Thus, a defen-

2010] P

EOPLE V

UCEY

273

dant’s criminal history that has not been given ad-

equate weight by the guidelines may provide a substan-

tial and compelling reason to depart from the guidelines

recommended sentence. Harper, 479 Mich at 638. Nev-

ertheless, MCL 769.34(3) requires the trial court to

“state[] on the record the reasons for departure.” The

Babcock Court explained that because of MCL

769.34(3),

it is not enough that there exists some potentially substan-

tial and compelling reason to depart from the guidelines

range. Rather, this reason must be articulated by the trial

court on the record. Accordingly, on review of the trial

court’s sentencing decision, the Court of Appeals cannot

affirm a sentence on the basis that, even though the trial

court did not articulate a substantial and compelling rea-

son for departure, one exists in the judgment of the panel

on appeal. Instead, in such a situation, the Court of Appeals

must remand the case to the trial court for resentencing or

rearticulation. The obligation is on the trial court to

articulate a substantial and compelling reason for any

departure. As discussed below, the obligation of the Court

of Appeals is to review the trial court’s determination that

a substantial and compelling reason exists for departure.

[Babcock, 469 Mich at 258-259 (emphasis in original).]

Because a “location departure” does not provide a

substantial and compelling reason for not imposing an

intermediate sanction, Ratliff, 480 Mich at 1108, and

because it is not even clear on this record that the trial

court realized its sentence was a guidelines departure,

we must remand this case to the trial court for resen-

tencing or rearticulation. Babcock, 469 Mich at 258-259.

On remand, the trial court must either impose an

intermediate sanction, or, if the court elects to affirm its

departure from the sentencing guidelines, state on the

record a substantial and compelling reason to sentence

defendant to the jurisdiction of the Department of

Corrections. MCL 769.34(4)(a).

274 287 M

ICH

267 [Feb

Defendant has also filed a Standard 4 brief in which

he argues that the presentence investigation report

(PSIR) contained false statements and inaccuracies and

that he was deprived of the effective assistance of

counsel because counsel failed to properly investigate

the case and raise meritorious defenses. Defendant’s

arguments are without merit.

We review a trial court’s response to a claim of

inaccuracy in the PSIR for an abuse of discretion.

People v Spanke, 254 Mich App 642, 648; 658 NW2d 504

(2003). A “sentencing court must respond to challenges

to the accuracy of information in a presentence report;

however, the court has wide latitude in responding to

these challenges.” Id. The trial court may determine

that the challenged information is accurate, accept the

defendant’s version, or disregard the challenged infor-

mation as irrelevant. Id. If the court chooses to disre-

gard the challenged information, it must indicate that it

did not consider the information when fashioning the

sentence and it must strike the information from the

PSIR. Id. at 649.

When reviewing a claim of ineffective assistance

arising from a guilty plea, our inquiry is whether the

plea was made voluntarily and understandingly. People

v Watkins, 247 Mich App 14, 31; 634 NW2d 370 (2001),

aff’d but modified on other grounds 468 Mich 233; 661

NW2d 553 (2003). The pertinent question is not

whether counsel’s advice was right or wrong; rather, it

is whether counsel’s advice was within the range of

competence for attorneys in criminal cases. Id.; People v

Thew, 201 Mich App 78, 89-90; 506 NW2d 547 (1993).

Defendant challenged the accuracy of the victim’s

impact statement, which described how the victim

injured his arm while attempting to apprehend defen-

dant. The trial court declined to change the victim’s

2010] P

EOPLE V

UCEY

275

impact statement because it considered that portion of

the report to be inherently subjective, explaining,

“[T]hat is what the victim said. Whether that is what

happened, that is what he remembers.” The trial court

did not abuse its discretion by declining to change this

portion of the PSIR.

Defendant also challenged the part of the PSIR that

indicated he had a history of substance abuse dating

back to 1980. Defendant argued that he abstained from

drugs while in prison, a fact that should be noted in the

PSIR. The probation officer argued that the personal

history section was intended to convey defendant’s

historical propensity for drug use and did not include

periods of abstinence. The trial court adopted the

probation officer’s rationale and declined to alter the

PSIR. This response was not an abuse of discretion.

Defendant also challenged the PSIR’s characteriza-

tion of his behavior on the night of the instant offense

as reflecting defendant’s past behavior and that he

appeared to be “casing” houses. Defendant challenged

the PSIR author’s conclusions as opposed to the factual

bases from which those conclusions were drawn. Ac-

cordingly, the trial court did not abuse its discretion in

retaining this opinion-based passage in the PSIR. See

People v Wybrecht, 222 Mich App 160, 173; 564 NW2d

903 (1997).

Defendant also claimed that, contrary to the state-

ment in the PSIR, the Michigan state trooper failed to

identify himself as a police officer when defendant and

his companion demanded he do so. The trial judge

declined to change the PSIR, stating, “I am satisfied

that it’s an appropriate statement and there is some

basis in fact, not just pulling it out of the air.” When a

defendant raises an effective challenge to the accuracy

of information contained in the PSIR, the burden shifts

276 287 M

ICH

267 [Feb

to the prosecution to prove the disputed factual asser-

tions in the PSIR by a preponderance of the evidence.

See People v Callon, 256 Mich App 312, 333-334; 662

NW2d 501 (2003). Defendant has not supported his

challenge; therefore, we conclude that the challenge

was not effective and that the trial court did not abuse

its discretion by declining to change the PSIR.

Defendant asserts for his claim of ineffective assis-

tance of counsel that counsel failed to properly investi-

gate the case and to raise meritorious defenses; how-

ever, defendant does not claim that his plea was

involuntarily or not understandingly made. Thus, de-

fendant has not carried his burden of demonstrating

that counsel provided ineffective assistance. Watkins,

247 Mich App at 30-31.

We affirm defendant’s convictions, but remand for

resentencing or rearticulation of a substantial and

compelling reason for departing from the sentencing

guidelines on defendant’s sentence for attempted third-

degree fleeing and eluding. We do not retain jurisdic-

tion.

2010] P

EOPLE V

UCEY

277

PEOPLE v DOWDY

Docket No. 287689. Submitted January 5, 2010, at Lansing. Decided

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

Randall L. Dowdy, a homeless person who has been convicted of

first-degree criminal sexual conduct, was charged in the Ingham

Circuit Court, Thomas L. Brown, J., with failure to comply with

the provisions of the Sex Offenders Registration Act (SORA), MCL

28.721 et seq. The trial court dismissed the charges. The Court of

Appeals, M

ETER

,P.J., and O

WENS

and M.J. K

ELLY

, JJ., denied the

prosecution’s delayed application for leave to appeal in an unpub-

lished order, entered February 12, 2009 (Docket No. 287689). The

Supreme Court, in lieu of granting leave to appeal, remanded the

case to the Court of Appeals for consideration as on leave granted.

484 Mich 855 (2009).

The Court of Appeals held:

1. SORA provides for registering and reporting by individuals

convicted of specified crimes where those individuals have either a

domicile or a residence.

2. A “domicile” is a person’s true, fixed, principal, and perma-

nent home, to which that person intends to return and remain

even though currently residing elsewhere. The parties agree that,

as a homeless person, defendant has no true, fixed, principal, and

permanent home.

3. The term “residence” generally, and as specifically defined

in SORA, does not include the concept of the intent to make the

residence a permanent home. A person may have many residences

but only one domicile.

4. Pursuant to SORA, a “residence” refers to a place, a

dwelling, an abode, where an individual has a regular place of

lodging. A “lodging” is a place to live or accommodations in a

house, especially in rooms to rent. The provisional location where

a homeless person happens to spend the night does not fall within

the ambit of these definitions. The concepts of habitually and

regularity are antithetical to the circumstances of homelessness.

5. SORA provides for maintaining information on the location

of convicted sex offenders in order to provide for the public safety.

278 287 M

ICH

278 [Feb

The reporting requirements are focused on persons who have a

domicile or a residence, as defined by the act. The trial court

properly dismissed the charges on the basis that defendant does

not have a domicile or a residence.

Affirmed.

RIMINAL

AW —

FFENDERS

EGISTRATION

The Sex Offenders Registration Act provides for the registering of

and reporting by individuals convicted of specified crimes where

those individuals have either a domicile or a residence, as defined

by the act (MCL 28.721 et seq.).

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

Solicitor General, Stuart J. Dunnings III, Prosecuting

Attorney, and Joseph B. Finnerty, Assistant Prosecut-

ing Attorney, for the people.

Patrick J. Eagan for defendant.

Before: B

ECKERING

,P.J., and M

ARKEY

and B

ORRELLO

JJ.

URIAM

. On remand from our Supreme Court,

the prosecution argues that the trial court erred by

dismissing the charges pending against the homeless

defendant for failure to comply with the Sex Offenders

Registration Act (SORA), MCL 28.721 et seq.

We af-

firm.

The prosecution originally brought a delayed application for leave to

appeal an order of the circuit court dismissing charges brought against

defendant under SORA for failing to register, MCL 28.729(1)(a), failing to

comply with reporting duties, MCL 28.729(2)(a), and failing to pay

registration fees, MCL 28.729(4). This Court denied leave on the basis of

a lack of merit in the appeal raised. People v Dowdy, unpublished order of

the Court of Appeals, entered February 12, 2009 (Docket No. 287689).

Our Supreme Court, in lieu of granting leave to appeal, remanded the

case for consideration as on leave granted. People v Dowdy, 484 Mich 855

(2009). Defendant has several convictions for the offense of first-degree

criminal sexual conduct, MCL 750.520b.

2010] P

EOPLE V

OWDY

279

Resolution of this appeal turns on an interpretation

of provisions of SORA. The goal of statutory interpre-

tation is to give effect to the intent of the Legislature.

People v Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).

The intent of the Legislature is most reliably shown

through the words used in the statute. Id.Ifthe

language in the statue is unambiguous, judicial con-

struction is neither required nor permitted. Id. But if a

statute is ambiguous, then judicial construction is ap-

propriate. See People v Gardner, 482 Mich 41, 50 n 12;

753 NW2d 78 (2008).

Here, the intent of the Legislature is clearly defined

in the act. The Legislature enacted SORA to “better

assist law enforcement officers and the people of this

state in preventing and protecting against the commis-

sion of future criminal sexual acts by convicted sex

offenders.” MCL 28.721a.

MCL 28.725(1) provides as follows:

An individual required to be registered under this act

shall notify the local law enforcement agency or sheriff’s

department having jurisdiction where his or her new

residence or domicile is located or the department post of

the individual’s new residence or domicile within 10 days

after the individual changes or vacates his or her residence,

domicile, or place of work or education, including any

change required to be reported under section 4a.

MCL 28.722(g) defines the term “residence” as fol-

lows:

“Residence”, as used in this act, for registration and

voting purposes means that place at which a person habitu-

ally sleeps, keeps his or her personal effects, and has a

regular place of lodging. If a person has more than 1

residence, or if a wife has a residence separate from that of

the husband, that place at which the person resides the

greater part of time shall be his or her official residence for

the purposes of this act.

280 287 M

ICH

278 [Feb

Thus, SORA provides for registering and reporting

by individuals convicted of specified crimes where those

individuals have either a domicile or residence. A “do-

micile” is “a person’s true, fixed, principal, and perma-

nent home, to which that person intends to return and

remain even though currently residing elsewhere.”

Black’s Law Dictionary (8th ed). While the terms “do-

micile” and “residence” are often used as synonyms, the

term “residence” generally, and as specifically defined

in SORA, does not include the concept of the intent to

make the residence a permanent home. A person may

have many residences, but only one domicile. See In re

Scheyer’s Estate, 336 Mich 645, 652; 59 NW2d 33

(1953); Beecher v Common Council of Detroit, 114 Mich

228, 230; 72 NW 206 (1897). SORA’s use of the two

terms clearly indicates that the act recognizes and

maintains this important distinction.

Domicile is not an issue in this case because the

parties agree that as a homeless person, defendant has

no “true, fixed, principal, and permanent home.” The

issue on appeal focuses on the question whether he has

a residence for purposes of SORA. It is accepted that

defendant is homeless. The plain language of the stat-

ute employed by the Legislature here says the term

“residence” refers to a place, a dwelling, an abode,

where an individual has a “regular place of lodging.” A

“lodging” is defined to be “[a] place to live,” The

American Heritage Dictionary of the English Language

(1996), or “accommodation in a house, esp. in rooms for

rent,” Random House Webster’s College Dictionary

(1997). The provisional location where a homeless per-

son happens to spend the night does not fall within the

ambit of these definitions. A homeless person is not

provided an accommodation by another as a place to

habitually sleep or store personal items.

2010] P

EOPLE V

OWDY

281

Moreover, the concepts of habitually and regularity

are antithetical to the circumstances of homelessness. If

there is anything “habitual” to the sleeping arrange-

ments of the homeless, it is that it is customary for

them not to have the security of a customary place of

lodging. If there is anything “regular” about the place

where a homeless person lives, it is that it is not within

a home. See People v Dowdy, 484 Mich 855, 857-858

(2009) (K

ELLY

, C.J., concurring).

In sum, in SORA, the Legislature provided for main-

taining information on the location of convicted sexual

offenders in order to provide for the public safety. MCL

28.721a. But, in so doing, the Legislature chose to focus

those reporting requirements on persons who have a

domicile or residence, as defined by the act. The Legis-

lature is free, indeed, empowered, to make this choice,

as it is to include a provision addressing reporting

requirements for the homeless. As Justice H

ATHAWAY

indicated in her dissenting opinion in Dowdy, 484 Mich

at 863, the purpose of SORA is wise, and the Legislature

is urged to consider changes so that a homeless person

who does not have a domicile or residence may readily

comply with its requirements. Any such change, how-

ever, is solely within the province of the legislative

branch. Gardner, 482 Mich at 66.

We affirm.

282 287 M

ICH

278 [Feb

PEOPLE v MANN

Docket No. 288314. Submitted January 5, 2010, at Lansing. Decided

February 2, 2010, at 9:10 a.m.

Brian C. Mann pleaded guilty in the Barry Circuit Court, James H.

Fisher, J., to charges of armed robbery and unlawful imprisonment

stemming from an incident during which defendant entered a

store while armed with a knife and demanded money from an

employee, obtained the money, left the store, stopped a woman

driving a car, and forced the woman to drive him to another

location. Defendant was sentenced to concurrent terms of 171

months to 40 years for the robbery conviction and 10 to 15 years

for the unlawful imprisonment conviction. The Court of Appeals,

ORT

OOD

,P.J., and W

HITE

and M

URRAY

, JJ., in lieu of granting

defendant’s delayed application for leave to appeal, entered an

unpublished order on May 21, 2008 (Docket No. 284628), vacating

the judgment of sentence and remanding the case to the trial court

with instructions to recalculate Offense Variable (OV) 9 in light of

People v Melton, 271 Mich App 590, 596 (2006), and MCL 777.39.

Melton held that OV 9 was to be scored solely according to the

number of victims placed in danger of physical injury or death, not

victims placed in danger of financial injury. MCL 777.39 was

amended after Melton was decided, effective one month before

defendant committed the crimes. The amendment added persons

placed in danger of property loss as victims for purposes of scoring

OV 9. On remand, the trial court changed the score of OV 9 from

10 points to zero points and resentenced defendant to 135 months

to 40 years for the robbery conviction and 10 to 15 years for the

unlawful imprisonment conviction. The prosecution appealed.

The Court of Appeals held:

1. Neither Melton nor the amendment of MCL 777.39 follow-

ing Melton presents a reason for adjusting the original scoring of

OV 9, because the prosecution has always relied on the fact that

two victims were placed in danger of injury or death, not financial

or other property-related criteria, in maintaining that a score of 10

points is proper. Neither Melton nor the legislative response to it

bars the reinstatement of the original score.

2010] P

EOPLE V

ANN

283

2. The course of committing an armed robbery includes the

robber’s conduct in fleeing the scene of the crime. Therefore,

defendant’s forcing the driver of the car to drive him from the

scene of the robbery created a second victim, the driver, of the

armed robbery.

3. The trial court inaccurately inferred from the Court of

Appeals order that the Court of Appeals demanded that OV 9 be

scored at zero points. The trial court correctly scored OV 9 at 10

points in the first instance. The sentences imposed on remand

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

for the reinstatement of the original sentences.

Vacated and remanded.

RIMINAL

AW —

RMED

OBBERY —

ONDUCT IN

LEEING

CENE OF

RIME

An armed robber’s conduct in fleeing the scene of the crime is

included within the course of committing the armed robbery (MCL

750.529, 750.530).

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

Solicitor General, Thomas E. Evans, Prosecuting Attor-

ney, and David G. Banister, Chief Assistant Prosecuting

Attorney, for the people.

Ronald D. Ambrose for defendant.

Before: B

ECKERING

,P.J., and M

ARKEY

and B

ORRELLO

JJ.

ARKEY

, J. The prosecution appeals by leave granted

the trial court’s decision to rescore a sentencing vari-

able and adjust downward defendant’s sentence for a

conviction of armed robbery, MCL 750.529. We vacate

and remand for reinstatement of the original sentences.

This appeal has been decided without oral argument

pursuant to MCR 7.214(E).

Defendant pleaded guilty to charges of armed rob-

bery and unlawful imprisonment, MCL 750.349b. At

the plea proceeding, defendant admitted that while

armed with a knife he entered a store in Nashville and

284 287 M

ICH

283 [Feb

demanded money from an employee. Defendant further

admitted that upon obtaining the money, he left the

store, stopped a woman driving a car, and forced her to

drive him to Battle Creek. In exchange for the plea, the

prosecutor agreed to drop charges of carjacking, MCL

750.529a, and kidnapping, MCL 750.349, and to waive

habitual offender enhancement of defendant’s sen-

tences. Additionally, the trial court agreed to impose

minimum sentences at the low end of the guidelines

range.

The trial court initially sentenced defendant to serve

concurrent terms of imprisonment of 171 months to 40

years for the robbery conviction and 10 to 15 years for

the unlawful imprisonment conviction. The trial court

denied a motion for resentencing. In response to defen-

dant’s delayed application for leave to appeal, this

Court, in lieu of granting the delayed application,

entered an order vacating the judgment of sentence and

remanding this case to the trial court with instructions

to recalculate Offense Variable (OV) 9 in light of People

v Melton, 271 Mich App 590, 596; 722 NW2d 698 (2006),

and MCL 777.39. Unpublished order, entered May 21,

2008 (Docket No. 284628). On remand, the trial court

changed the score of OV 9 from 10 to zero points, and

resentenced defendant to 135 months to 40 years for

the robbery conviction and 10 to 15 years for the

unlawful imprisonment conviction. The prosecutor now

appeals by leave granted.

Offense Variable 9 addresses the number of victims.

The trial court originally assessed 10 points for that

variable, which is the total prescribed where “[t]here

were 2 to 9 victims who were placed in danger of

physical injury or death....”MCL777.39(1)(c).

In the conflict resolution case of Melton, this Court

held that OV 9 was to be scored solely according to the

2010] P

EOPLE V

ANN

285

number of victims placed only in physical danger. Under

Melton, no points are to be scored under OV 9 for

victims placed in danger of financial injury. Melton, 271

Mich App at 592 (D

AVIS

,P.J.), 597 (N

EFF

, J., concurring).

Melton was decided on July 20, 2006. In apparent

response to that decision, the Legislature amended

MCL 777.39, effective March 30, 2007 (approximately

one month before the crimes here at issue), to add

persons placed in danger of property loss to those placed

in danger of physical injury or death as victims for

purpose of scoring OV 9. 2006 PA 548.

In this case, however, the prosecutor seeks to return

defendant’s score for OV 9 from zero to 10 points solely

on the basis that two victims were threatened with

injury or death. Because the prosecutor has never relied

on financial or other property-related criteria in main-

taining that a score of 10 points is proper, neither

Melton nor the legislative response to it presents a

reason for adjusting the original scoring of OV 9.

Consequently, neither Melton nor the legislative re-

sponse to it now bar the reinstatement of that original

score.

Other caselaw does come to bear, however. In People

v McGraw, 484 Mich 120; 771 NW2d 655 (2009), our

Supreme Court held that for purposes of scoring OV 9,

“a defendant’s conduct after an offense is completed

does not relate back to the sentencing offense for

purposes of scoring offense variables unless a variable

specifically instructs otherwise.” Id. at 122.

Defendant protests that his armed robbery was com-

pleted with there being only one victim for purposes of

OV 9 before he began the separate crime stemming

from his commandeering a car and driver for his

getaway. The applicable statutes, however, prevail over

this empirical reasoning. MCL 750.530(1) sets forth

286 287 M

ICH

283 [Feb

robbery in general terms as a felony punishable by

imprisonment for not more than 15 years. MCL

750.530(2) in turn adds that for purposes of that

statute, the course of committing a larceny includes

“flight or attempted flight after the commission of the

larceny....”MCL750.529 incorporates MCL 750.530

by reference and enhances the penalty if the robbery is

accomplished with the use of a dangerous weapon.

Accordingly, the course of an armed robbery includes

the robber’s conduct in fleeing the scene of the crime.

Thus, in the instant case, defendant’s commandeering

of a car immediately after taking money from the first

victim and forcing the driver of the car to drive him to

another community, created a second victim of the

armed robbery. In other words, the carjacking incident

constituted not only the commission of separate of-

fenses, but was also a continuation of the armed rob-

bery.

At the beginning of the resentencing proceeding, the

trial court stated, “As I understand it, the Court of

Appeals has indicated that OV 9 should have been

scored zero. Is that correct?” Defense counsel agreed,

but the prosecuting attorney protested, arguing that

the variable was to be recalculated, not necessarily

adjusted to zero. The trial court heard arguments,

announced its decision to rescore OV 9 at zero, and

invited the prosecuting attorney to appeal.

Defendant argues that the trial court correctly inter-

preted this Court’s remand order in this regard and

that the result demands respect now as the law of the

case. We disagree.

We conclude that the trial court inaccurately inferred

from this Court’s remand order that this Court de-

manded that it score zero for OV 9. This Court instead

expected only that the question would be considered

2010] P

EOPLE V

ANN

287

anew, applying Melton, to the extent that it was rel-

evant. Upon further review, we now conclude that the

trial court correctly scored OV 9 at 10 points in the first

instance.

Because the original sentences of 171 months to 40

years for the armed robbery conviction and 10 to 15

years for the unlawful imprisonment conviction were

within the appropriate guidelines sentence range of

properly scored guidelines, resentencing is neither re-

quired nor permitted. MCL 769.34(10). Instead, we

vacate the sentences imposed after this Court’s initial

remand and again remand with instructions to rein-

state the original sentences.

We vacate defendant’s new sentences and remand for

reinstatement of his original sentences. We do not

retain jurisdiction.

The trial court should take this opportunity to correct an irregularity

that the parties have not discussed. Although at resentencing the trial

court stated from the bench its intention to retain the 10- to 15-year

sentence for the unlawful imprisonment conviction, which was not at

issue, the judgment of sentence that followed listed for that conviction

the same 135 months to 40 years sentence listed for the armed robbery

conviction. Because there was no legal reason or justification for increas-

ing both the minimum and maximum sentences for that conviction, we

regard this irregularity as simple inadvertence but ask the trial court to

correct it on remand.

288 287 M

ICH

283 [Feb

CITIZENS STATE BANK v NAKASH

Docket No. 286990. Submitted December 2, 2009, at Detroit. Decided

February 9, 2010, at 9:00 a.m.

Citizens State Bank brought an action in the Macomb Circuit Court

against Ramzia Nakash, trustee of the Ramzia Nakash Revocable

Trust, seeking declaratory relief as to an alleged surplus created

when intervening plaintiffs, Vasilios L., Rose Marie, and George

Melistas, defaulted with regard to a mortgage executed between

intervening plaintiffs, as mortgagors, and defendant, as mort-

gagee. Defendant was the only bidder at the sheriff’s sale following

foreclosure proceedings commenced by defendant, and defendant

bid an amount that included the amount stated in the mortgage,

which was recorded, and the amount of additional loans from

defendant to intervening plaintiffs made after the mortgage was

recorded that were allegedly referred to in an unrecorded promis-

sory note referenced in the mortgage. Following the recording of

the mortgage, plaintiff loaned intervening plaintiffs money se-

cured by a mortgage on the same property on which defendant

held his mortgage. Plaintiff sought the surplus to satisfy its junior

mortgage, while defendant asserted that a future advance mort-

gage was created by the promissory note that was incorporated by

reference into its recorded mortgage. The trial court, Peter J.

Maceroni, J., held that defendant did not have a future advance

mortgage and had therefore created a surplus to which plaintiff

was entitled. Defendant appealed the order of judgment.

The Court of Appeals held:

MCL 565.901(b) requires that an instrument creating a future

advance mortgage be recorded. All the language used by defendant

to support the creation of a future advance mortgage is found

within the unrecorded promissory note. The recorded mortgage

does not contain any future advance language. The trial court

correctly determined that the requirements for the creation of a

future advance mortgage were not met and that defendant’s bid

was in excess of his recoverable interest, entitling plaintiff, as a

junior mortgagee, to claim the surplus.

Affirmed.

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1. M

ORTGAGES —

ORDS AND

HRASES —

UTURE

DVANCES

A “future advance” is an indebtedness or other obligation that is

secured by a mortgage and arises or is incurred after the mortgage

has been recorded, whether or not the future advance was obliga-

tory or optional on the part of the mortgagee (MCL 565.901[a]).

2. M

ORTGAGES —

ORDS AND

HRASES —

UTURE

DVANCE

ORTGAGES

A “future advance mortgage” is a mortgage that secures a future

advance and is recorded; if a recorded mortgage is amended to

secure, expressly and not by implication, a future advance arising

after the amendment, the mortgage becomes a future advance

mortgage at the time the amendment is recorded; the instrument

creating a future advance mortgage must be recorded (MCL

565.901 [b]).

Holzman Ritter & LeDuc, PLLC (by Pamela S. Ritter

and Steven D. DeLuca), for plaintiff.

Allen Brothers, PLLC (by David W. Jones), for defen-

dant.

Before: S

ERVITTO

,P.J., and F

ORT

OOD

and S

TEPHENS

JJ.

URIAM

. Defendant, Ramzia Nakash, trustee of

the Ramzia Nakash Revocable Trust, appeals as of right

the trial court’s order of judgment in favor of plaintiff,

Citizens State Bank. The court held that defendant did

not have a future advance mortgage and, therefore, his

bid at a foreclosure sale created a surplus to which

plaintiff was entitled as a junior mortgagee. We affirm.

On July 24, 2004, the mortgage at issue was executed

between intervening plaintiffs, as mortgagors, and de-

fendant, as mortgagee. The mortgage provided, in part,

that “Mortgagors owe Mortgagee the principal sum of

Two Hundred Fifty Thousand ($250,000) Dollars pur-

suant to the terms set forth in that certain promissory

note executed on even date herewith (the ‘Indebted-

ness’).”

290 287 M

ICH

289 [Feb

The promissory note referenced in the mortgage con-

tained the following language:

To secure payment of this Note and all other obligations

which Debtor owes to the Holder, whether the obligations

are now existing or are hereafter created, whether direct or

indirect, whether absolute or contingent, and whether due

or to become due, Debtor has agreed to grant Holder a

mortgage on certain real estate...pursuant to a certain

Mortgage executed on even date herewith.

On August 2, 2004, the mortgage was recorded with

the Macomb County Register of Deeds. As shown by

promissory notes, defendant subsequently loaned inter-

vening plaintiffs $50,000, followed by a second loan of

$30,000.

Following the recording of the mortgage, plaintiff

loaned intervening plaintiffs $500,000. The loan was

secured by a mortgage on the same property on which

defendant held a mortgage interest. The mortgage was

recorded with the Macomb County Register of Deeds on

December 8, 2004. The parties do not dispute that the

mortgage in favor of plaintiff is the junior mortgage.

Intervening plaintiffs eventually defaulted under de-

fendant’s mortgage. Defendant subsequently com-

menced foreclosure proceedings and was the only bid-

der at the resulting sheriff’s sale. Defendant’s bid of

$474,308.95 was apparently based on the original

$250,000 loan, along with the subsequent loans, and

also included interest and costs permitted by statute. In

the trial court, plaintiff contended that it was improper

for defendant’s bid to include the additional loans.

Therefore, according to plaintiff, defendant’s bid cre-

Defendant claims that there were other loans granted to intervening

plaintiffs and that these loans exceeded $124,000. However, as defendant

acknowledges, there are no documents available proving the existence of

the additional loans.

2010] C

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ated a surplus to which plaintiff was entitled as the

junior lien holder. In contrast, defendant asserted that

there was no surplus because his mortgage was a future

advance mortgage. Defendant acknowledged that the

language of the mortgage in question did not explicitly

create a future advance mortgage. However, defendant

argued that a future advance mortgage was created by

the language of the underlying promissory note that

was incorporated by reference into the recorded mort-

gage. The trial court, citing MCL 565.901, held that

“defendant’s recorded mortgage fails to contain specific

language establishing a future advance mortgage.” The

court elaborated, “It is not sufficient that the mortgage

references a promissory note with the requisite lan-

guage inasmuch as the note was unrecorded.” Accord-

ingly, the court concluded that defendant’s mortgage

lien “is confined to the repayment of the $250,000.00,

plus any interest, taxes, and other assessments/costs

included.” As a result, an order of judgment was en-

tered on June 16, 2008, that declared that defendant’s

purchase of the foreclosed property created a surplus.

On appeal, defendant asserts that the trial court’s

order was in error for failing to recognize the future

advance mortgage. We disagree.

Whether the instruments here at issue created a

future advance mortgage is a question of law. This

Court reviews questions of law de novo. Cardinal

Mooney High Sch v Mich High Sch Athletic Ass’n, 437

Mich 75, 80; 467 NW2d 21 (1991); Rapistan Corp v

Michaels, 203 Mich App 301, 306; 511 NW2d 918

(1994). To the extent that this case calls for statutory

interpretation, review is also de novo. Esselman v

Garden City Hosp, 284 Mich App 209, 216; 772 NW2d

438 (2009).

292 287 M

ICH

289 [Feb

MCL 565.901(a) defines “future advance” as “an

indebtedness or other obligation that is secured by a

mortgage and arises or is incurred after the mortgage

has been recorded, whether or not the future advance

was obligatory or optional on the part of the mort-

gagee.” MCL 565.901(b), in turn, defines “future ad-

vance mortgage” as “a mortgage that secures a future

advance and is recorded....Ifarecorded mortgage is

amended to secure, expressly and not by implication, a

future advance arising after the amendment, the mort-

gage becomes a future advance mortgage at the time the

amendment is recorded.”

MCL 565.901(b) requires that the instrument creat-

ing a future advance mortgage be recorded. All the

language used by defendant to support the creation of

such an advance is found within the unrecorded prom-

issory note. Defendant relies on Ladue v Detroit&MR

Co, 13 Mich 380 (1865), and In re Claim of Seiberling

Tire & Rubber Co, 78 Mich App 587, 590-591; 261

NW2d 13 (1977), for his argument that plaintiff was on

notice of the future advance nature of the mortgage

between defendant and intervening plaintiffs. Defen-

dant correctly cites Ladue as requiring reasonable in-

quiry by a lender. As Ladue states:

The record of such an instrument might be an intima-

tion that advances and indorsements were contemplated as

probable, and that they might, therefore, have been already

made; and for this reason might, to this extent, properly

put a purchaser or incumbrancer upon inquiry. But, unless

it is to have a greater effect than the record of other

mortgages, it could be notice only of such facts as might

have been ascertained by inspection of the instrument and

papers referred to, and by inquiry; in other words, by a

knowledge of the rights of the parties in respect to the land

at the time notice became material. [Ladue, supra at 398.]

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Seiberling did acknowledge the viability of the Ladue

decision, but focused its attention on what kind of

documentation put a subsequent lender on notice of a

future advance mortgage. In Seiberling,

[i]t was the mortgage itself that was recorded, not any

notes evidencing indebtedness. Plaintiff had constructive

notice of the defendant’s mortgage, and the terms thereof,

at the time the second mortgage was consummated. It was

incumbent upon plaintiff to ascertain the status of the

prior encumbrance before making its loan to the mortgag-

ors. Having failed to do so, plaintiff cannot now complain

that it was unaware of the second advance by defendant.

[Seiberling, 78 Mich App at 590-591.]

Thus, even before the enactment of the current statute,

Michigan law focused on the examination of recorded

instruments. The requirements of MCL 565.901 be-

came effective in 1991. 1990 PA 348. The amendment to

incorporate the requirement that amendments to mort-

gages be express and recorded was added in 1992. 1992

PA 35. Defendant misreads the more recent case of

Farm Credit Servs of Michigan’s Heartland, PCA v

Weldon, 232 Mich App 662; 591 NW2d 438 (1998), as

allowing the creation of future advance mortgages by

reference. In Farm Credit, the Court found evidentiary

error when a trial court failed to consider documents

executed contemporaneously with a recorded mortgage

to determine if the parties intended the mortgage to be

a complete integration of all agreements between them.

That analysis, while silent as to whether the other

instruments were recorded, focused on the use of con-

temporaneous documents between parties to those

documents. In this case plaintiff and defendant are

contractual strangers, governed by statute not the

common law. The recorded instrument does not contain

any future advance language and the promissory note

was unrecorded. Therefore the trial court correctly

294 287 M

ICH

289 [Feb

determined that the requirements for the creation of a

future advance mortgage were not met.

For these reasons, the trial court correctly held that

the recorded mortgage’s incorporation by reference of

an unrecorded promissory note with a future advance

clause did not thereby create a future advance mortgage

and that defendant’s bid on the foreclosed property was

in excess of his recoverable interest, entitling plaintiff,

as a junior mortgagee, to claim the surplus.

Affirmed.

2010] C

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295

DALLEY v DYKEMA GOSSETT PLLC

Docket No. 289046. Submitted January 5, 2010, at Grand Rapids.

Decided February 11, 2010, at 9:00 a.m.

H. Scott Dalley brought an action in the Kent Circuit Court, Paul J.

Sullivan, J., against Dykema Gossett P.L.L.C., John Ferroli, a

Dykema employee, Guidance Software, Inc., and Lincoln National

Life Insurance Company and Lincoln Financial Advisors Corpora-

tion (collectively Lincoln), alleging five intentional tort claims

resulting from the defendants’ conduct in gaining entry into

plaintiff’s apartment and copying the data from all plaintiff’s

computers while serving plaintiff a temporary restraining order

(TRO) entered in the United States District Court for the Western

District of Michigan in an action brought by Lincoln against

Rodney Ellis, a Lincoln agent, and Lucasse, Ellis, Inc. Dykema

Gossett and Ferroli represented Lincoln in the federal court

action. The five tort claims included invasion of privacy in the form

of intrusion on seclusion or into private affairs, trespass, inten-

tional or reckless infliction of emotional distress, abuse of process,

and tortious interference with business relationships or expectan-

cies. The trial court granted defendants’ motions for summary

disposition and dismissed plaintiff’s complaint. Plaintiff appealed.

The Court of Appeals held:

1. Plaintiff adequately set forth a claim of invasion of privacy

by intrusion on seclusion. The language of the TRO did not render

unenforceable plaintiff’s claim of intrusion on seclusion. Defen-

dants and plaintiff shared no special relationship, business or

otherwise, and defendants possessed no legitimate interest in

viewing plaintiff’s apartment or copying his computer data unre-

lated to Lincoln. The circuit court erroneously concluded that the

TRO divested plaintiff of his right to privacy in his apartment and

computer hard drives. The TRO afforded defendants no right

whatsoever to enter or search plaintiffs’ apartment or copy per-

sonal computer data unrelated to Lincoln. There is no support for

the circuit court’s conclusion that defendants “had a right to copy

hard drives that were potential sources of Lincoln information.”

2. The circumstances surrounding defendants’ entry into

plaintiff’s apartment and the copying of his computer hard drives

296 287 M

ICH

296 [Feb

reasonably suggest that defendants’ artifice and dishonesty en-

ticed plaintiff’s consent. Factual questions on which reasonable

minds could differ exist with respect to whether defendants gained

admission to plaintiff’s apartment by deceit or exceeded the scope

of the consent plaintiff extended. As alleged by plaintiff, defen-

dants’ entry of plaintiff’s apartment under false pretenses and

their disregard of his instructions about the location of the

Lincoln-related information they desired could be found objection-

able by a reasonable juror. Irrespective of whether defendants ever

viewed the copied information, plaintiff’s amended complaint

adequately pleaded an invasion of plaintiff’s seclusion and the trial

court improperly granted summary disposition of this claim in

favor of defendants.

3. The circuit court’s conclusion that the language of the TRO

contemplated or authorized an entry into plaintiff’s apartment is

unfounded. The averments in plaintiff’s amended complaint ad-

equately delineate a trespass claim and defendants’ alleged misrep-

resentations could reasonably be found to have vitiated plaintiff’s

consent to the entry of his apartment. The circuit court erred by

granting summary disposition of the trespass claim in favor of

defendants.

4. Defendants’ actions did not amount to atrocious or extreme

behavior and did not rise to the level of outrageousness necessary

to establish a claim of intentional infliction of emotional distress.

The trial court correctly dismissed this claim.

5. The trial court properly determined that plaintiff did not

identify an act or facts supporting the allegation that defendants

used the TRO for an improper collateral purpose. The case must be

remanded to the circuit court and plaintiff must be afforded an

opportunity to amend his complaint pursuant to MCR 2.116(I)(5)

to set forth his abuse of process claim in greater detail.

6. The plaintiff failed to allege an act of improper interference

by defendants sufficient to allow him to maintain his claim of

tortious interference with a business relationship or expectancy.

Summary disposition of this claim was properly granted in favor of

defendants.

Affirmed in part, reversed in part, and remanded.

1. T

ORTS —

NVASION OF

RIVACY —

NTRUSION

PON

ECLUSION

The three elements necessary to establish a prima facie case of

intrusion upon seclusion are the existence of a secret and private

subject matter, a right possessed by the plaintiff to keep that subject

matter private, and the obtaining of information about that subject

matter through some method objectionable to a reasonable person;

2010] D

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such an action focuses on the manner in which the information was

obtained, not on the information’s publication.

2. T

ORTS —

NVASION OF

RIVACY —

NTRUSION

PON

ECLUSION —

ONSENT TO

NTRUSION

There can be no invasion of privacy under the theory of intrusion

upon the seclusion of the plaintiff if the plaintiff consented to the

defendant’s intrusion; the scope of a waiver or consent generally

will present a question of fact for the jury.

3. T

ORTS —

NTENTIONAL

NFLICTION OF

MOTIONAL

ISTRESS

A plaintiff, to establish a prima facie claim of intentional infliction of

emotional distress, must present evidence of the defendant’s

extreme and outrageous conduct, the defendant’s intent or reck-

lessness, causation, and the severe emotional distress of the

plaintiff; liability will attach only if the plaintiff demonstrates that

the defendant’s conduct was so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency

and to be regarded as atrocious and utterly intolerable in a

civilized community.

4. T

ORTS —

BUSE OF

ROCESS

An action for abuse of process lies for the improper use of process

after it has been issued, not for maliciously causing it to issue.

5. T

ORTS —

NTERFERENCE

ITH A

USINESS

ELATIONSHIP

The elements of a claim of tortious interference with a business

relationship are the existence of a valid business relationship or

expectancy, knowledge of the relationship or expectancy on the

part of the defendant, an intentional interference by the defendant

inducing or causing a breach or termination of the relationship or

expectancy, and resultant damage to the plaintiff; the plaintiff

must demonstrate that the defendant acted both intentionally and

either improperly or without justification to fulfill the third

element and must demonstrate, with specificity, affirmative acts

by the defendant that corroborate the improper motive of the

interference to establish that the defendant’s conduct lacked

justification and showed malice; where the defendant’s actions

were motivated by legitimate business reasons, its actions would

not constitute improper motive or interference.

Kreis, Enderle, Hudgins & Borsos, PC (by Sean P.

Fitzgerald), and Fossi & Jewell (by Karen Jewell and

Lawrence J. Fossi) for plaintiff.

298 287 M

ICH

296 [Feb

Smith Haughey Rice & Roegge (by Jon D. Vander

Ploeg, Charles F. Behler, and John R. Oostema) for

Dykema Gossett PLLC, John Ferroli, and Guidance

Software, Inc.

Barnes & Thornburg LLP (by Jeffrey G. Muth) and

Chittenden, Murday & Novotny LLC (by Donald A.

Murday, David J. Novotny, and Vittorio F. Terrizzi) for

Lincoln National Life Insurance Company and Lincoln

Financial Advisors Corporation.

Before: S

TEPHENS

,P.J., and G

LEICHER

and M. J. K

ELLY

JJ.

LEICHER

, J. In this action alleging several inten-

tional torts, plaintiff, H. Scott Dalley, appeals as of right

a circuit court order granting defendants summary

disposition pursuant to MCR 2.116(C)(8). We affirm in

part, reverse in part, and remand for further proceed-

ings.

I. FACTS AND UNDERLYING PROCEEDINGS

A. THE FEDERAL CASE

This case finds its genesis in a dispute between an

insurance company and its agent. On April 13, 2004,

defendants Lincoln National Life Insurance Company

and Lincoln Financial Advisors Corporation (collec-

tively Lincoln) sued Rodney Ellis, a Lincoln agent, and

Lucasse, Ellis, Inc. (Lucasse), a company partially

owned by Ellis, in the United States District Court for

the Western District of Michigan. Lincoln’s federal

court complaint alleged fraud, breach of fiduciary duty,

conversion, breach of contract, and tortious interfer-

ence with business expectancies or relations. Defen-

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dants Dykema Gossett P.L.L.C. (Dykema) and John

Ferroli, a Dykema member, represented Lincoln in the

federal court action.

On April 15, 2004, a federal judge entered a tempo-

rary restraining order (TRO) prohibiting Ellis, Lucasse,

and instant plaintiff Dalley from “deleting, erasing,

destroying, shredding, secreting, removing, modifying,

overwriting, replacing, or ‘wiping’ ” any computer data

or files containing information related to Lincoln’s

customers and financial records. The paragraphs of the

TRO directly relevant to plaintiff’s present intentional

tort action provide as follows:

9. Rodney D. Ellis and Lucasse, Ellis, Inc., all officers,

owners, employees, principals, and agents of either of them

who receive actual notice of this Order by personal service

or otherwise, including but not limited to H. Scott Dalley,

and all persons or entities acting in concert with any of

them, are hereby ordered immediately upon service of this

order to make available to a computer/data consultant

retained by Plaintiffs all hard drives and other magnetic,

optical or electronic media in the possession, custody, or

control of any of them, including those hard drives and

other magnetic, optical, or electronic media that they have

the effective power to obtain, which contain any Lincoln

Customer Records, for prompt non-destructive copying at

Plaintiffs’ expense. Plaintiffs shall minimize disruption to

the producing person’s business to the extent practicable.

Plaintiffs shall return all hard drives and other magnetic,

optical, or electronic media supplied pursuant to this Order

within 24 hours, or such longer time as may be stipulated

to or ordered by this Court. Plaintiffs’ computer consultant

shall maintain the copied data in a secure, locked location,

and shall not review or inspect the data copied, or show it

to Plaintiffs or their attorneys, until further order of this

Court.

10. Rodney D. Ellis and Lucasse, Ellis, Inc., all officers,

owners, employees, principals, and agents of either of

them, including, but not limited to, H. Scott Dalley, and all

300 287 M

ICH

296 [Feb

persons or entities acting in concert with any of them who

receive actual notice of this Order by personal service or

otherwise, are hereby ordered immediately upon service of

this order to provide for prompt copying of, at Plaintiffs’

expense, (i) any and all “notes” data, files or records of

present or former customers of any Lincoln affiliate, and

(ii) any and all “Alice Reports,” “A-Roll” lists, and any other

documents relating to any contemplated or processed

change-in-employment status for any employees of the

Henry Ford Health System with an account at any Lincoln

affiliate.

[

]

On April 19, 2004, Lincoln’s agents served plaintiff with

the TRO in his Kentwood apartment, and with the

assistance of personnel employed by defendant Guid-

ance Software, Inc. (Guidance Software), copied all the

data from all of plaintiff’s computers. The events sur-

rounding defendants’ entry into plaintiff’s apartment

and the copying of his computer data form the basis of

the instant lawsuit.

B. THE STATE COURT COMPLAINT

Plaintiff commenced this action on April 18, 2007, by

filing in the Kent Circuit Court a complaint against

Dykema, Ferroli, Lincoln, and Guidance Software.

Plaintiff subsequently filed a substantially similar first

Despite that this case involves a summary disposition motion brought

under MCR 2.116(C)(8), we consider the TRO because defendants rely, in

part, on the language of the TRO, which is a matter of public record, see

MCR 2.113(F)(1)(a), and plaintiff’s complaint references the TRO.

On June 13, 2007, defendants removed this action to federal court,

averring that “the allegations of Plaintiff’s Complaint raise substantial

disputed issues concerning the scope and interpretation of a Temporary

Restraining Order entered by the United States District Court for the

Western District of Michigan....”However, a federal judge later granted

plaintiff’s motion to remand, finding that “the TRO is not a complex

document and did not specifically retain jurisdiction in a federal court for

the purpose of interpreting and enforcing it.”

2010] D

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301

amended complaint, which describes in detail the cir-

cumstances surrounding defendants’ conduct in serving

the TRO and copying plaintiff’s computer data. Because

the allegations within the amended complaint supply

the facts necessary to our resolution of this case, we

turn to an examination of that pleading.

The amended complaint avers that in April 2004,

plaintiff worked out of his apartment as an independent

computer consultant for several small businesses, in-

cluding Lucasse. The computers in his apartment pro-

vided the means to generate his livelihood and held

confidential information concerning all his clients, such

as their user identifications and passwords. Plaintiff,

who suffers from AIDS, also stored on his computers

highly personal information, medical records, photo-

graphs, and tax returns.

On April 19, 2004, plaintiff’s doorbell rang and

someone requested that plaintiff permit entry into his

apartment building. Because plaintiff was not expecting

visitors, he did not respond. At approximately 11:00

a.m., loud pounding on his door “jolted” plaintiff awake

and he “realized that the men outside had managed to

slip through the security system downstairs.” Plaintiff

saw papers slid under his door, and he read them after

the men had departed. The papers included the TRO,

which “completely blindsided” plaintiff. Soon thereaf-

ter, plaintiff’s telephone rang, but he did not answer it.

The caller, Ferroli, left a message declaring that a

federal court subpoena allowed him and others to enter

plaintiff’s apartment “to either take his computers and

hard drives or copy what was on them.” Plaintiff

“reasonably believed that he could not let Ferroli simply

walk out the door with the computers,” and that “he

had no choice and would go to jail” if he refused Ferroli

access to his computers. Plaintiff thus “returned Ferro-

302 287 M

ICH

296 [Feb

li’s call and agreed to” allow Ferroli “to copy the

information on his computers.”

Ferroli and several Guidance Software employees

arrived, and plaintiff “led the group to the master

bedroom where he kept two computers and four hard

drives and, having seen from the subpoena that the case

had something to do with Lincoln and Ellis, pointed

them to the one and only hard drive that would contain

Lincoln data.” But “[t]he intruders... demanded ev-

erything.” The Guidance Software personnel connected

laptop computers to plaintiff’s machines and trans-

ferred “every bit of information on all [plaintiff’s]

computers and hard drives.” Only a “small percentage”

of the information copied by the Guidance Software

personnel related to Ellis, Lucasse, or Lincoln. The data

transfer and copying process consumed 11 hours, dur-

ing which period Ferroli “wandered in and out.” In frail

health and underweight, plaintiff “did not sleep for

several days thereafter.”

Four days after Ferroli and the Guidance Software

technicians entered plaintiff’s home, a Dykema attor-

ney took plaintiff’s deposition, urging him “to state on

the record that he was suffering from AIDS[.]” As a

result of illness, plaintiff had to complete the deposition

later, by telephone from his bed. On July 1, 2004,

Lincoln’s attorneys informed the federal judge in the

Ellis case that plaintiff had violated the TRO. Despite

this claim and similar allegations in Lincoln’s federal

court complaint, defendants never uncovered or pre-

sented any evidence of wrongdoing by plaintiff or Ellis.

Defendants’ actions “traumatized [plaintiff], devas-

tated his best customer, and thereby destroyed [plain-

tiff’s] business.” According to the amended complaint,

Lincoln bore vicarious liability for the conduct of

Dykema, Ferroli, and Guidance Software, because these

2010] D

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303

defendants “were Lincoln’s agents and were acting

within the scope of their agency.”

The amended complaint sets forth five intentional

tort claims: invasion of privacy in the form of intrusion

on seclusion or into private affairs; trespass; intentional

or reckless infliction of emotional distress; abuse of

process; and tortious interference with business rela-

tionships or expectancies. All defendants sought sum-

mary disposition of plaintiff’s claims pursuant to MCR

2.116(C)(8). Dykema, Ferroli and Guidance Software

filed a separate motion seeking summary disposition

under MCR 2.116(C)(10). In a written opinion and

order entered on September 9, 2008, the circuit court

granted defendants’ motions under (C)(8) and dis-

missed the entirety of plaintiff’s complaint.

II. SUMMARY DISPOSITION ANALYSIS

A. STANDARD OF REVIEW

Plaintiff challenges the circuit court’s grant of sum-

mary disposition in favor of defendants regarding all

five counts of his complaint. This Court reviews de novo

a circuit court’s summary disposition ruling. Walsh v

Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A

court may grant summary disposition under MCR

2.116(C)(8) if “[t]he opposing party has failed to state a

claim on which relief can be granted.” A motion brought

under subrule (C)(8) tests the legal sufficiency of the

complaint solely on the basis of the pleadings. Corley v

Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342

(2004).

When deciding a motion under (C)(8), this

Court accepts all well-pleaded factual allegations as

In contrast, a motion brought “under MCR 2.116(C)(10) tests the

factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109,

120; 597 NW2d 817 (1999) (emphasis added).

304 287 M

ICH

296 [Feb

true and construes them in the light most favorable to

the nonmoving party. Maiden v Rozwood, 461 Mich 109,

119; 597 NW2d 817 (1999). A party may not support a

motion under subrule (C)(8) with documentary evi-

dence such as affidavits, depositions, or admissions.

Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879

(1994). Summary disposition on the basis of subrule

(C)(8) should be granted only when the claim “is so

clearly unenforceable as a matter of law that no factual

development could possibly justify a right of recovery.”

Kuhn v Secretary of State, 228 Mich App 319, 324; 579

NW2d 101 (1998).

Because the circuit court granted defendants sum-

mary disposition solely under subrule (C)(8), we exam-

ine the pleaded allegations pertaining to each of the

asserted intentional torts. Well-established principles

guide our review. A complaint must contain “[a] state-

ment of the facts, without repetition, on which the

pleader relies in stating the cause of action, with the

specific allegations necessary reasonably to inform the

adverse party of the nature of the claims the adverse

party is called on to defend....” MCR 2.111(B)(1).

“[T]he primary function of a pleading in Michigan is to

give notice of the nature of the claim or defense suffi-

cient to permit the opposite party to take a responsive

position.” Stanke v State Farm Mut Auto Ins Co, 200

Mich App 307, 317; 503 NW2d 758 (1993), citing 1

Martin, Dean & Webster, Michigan Court Rules Prac-

tice, p 186. Our Supreme Court has characterized MCR

2.111(B)(1) as consistent with a “notice pleading envi-

ronment....” Roberts v Mecosta Co Gen Hosp (After

Remand), 470 Mich 679, 700 n 17; 684 NW2d 711

(2004). If a party fails to plead facts with sufficient

detail, the court should permit “the filing of an

amended complaint setting forth plaintiff’s claims in

2010] D

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305

more specific detail.” Rose v Wertheimer, 11 Mich App

401, 407; 161 NW2d 406 (1968); see also MCR

2.116(I)(5).

B. INVASION OF PRIVACY

“Michigan has long recognized the common-law tort

of invasion of privacy.” Lewis v LeGrow, 258 Mich App

175, 193; 670 NW2d 675 (2003). Dean William Prosser

has identified a Michigan case, De May v Roberts,46

Mich 160; 9 NW 146 (1881), as among the first reported

decisions allowing relief premised on an invasion of

privacy theory. Prosser, Privacy, 48 Cal L R 383, 389

(1960). Today, the invasion of privacy tort

has evolved into four distinct tort theories: (1) the intru-

sion upon another’s seclusion or solitude, or into another’s

private affairs; (2) a public disclosure of private facts about

the individual; (3) publicity that places someone in a false

light in the public eye; and (4) the appropriation of anoth-

er’s likeness for the defendant’s advantage.” [Lewis, 258

Mich App at 193.]

Count I of plaintiff’s amended complaint invokes intru-

sion on seclusion, the first of these theories.

There are three necessary elements to establish a prima

facie case of intrusion upon seclusion: (1) the existence of a

secret and private subject matter; (2) a right possessed by

the plaintiff to keep that subject matter private; and (3) the

obtaining of information about that subject matter through

some method objectionable to a reasonable man. [Doe v

Mills, 212 Mich App 73, 88; 536 NW2d 824 (1995).]

The circuit court granted summary disposition in

favor of defendants of plaintiff’s intrusion on seclusion

claim on the basis that the complaint failed to set forth

facts “that show that he had a right to privacy in those

areas of the apartment necessary to carry out the

mandate of the TRO.” Relying on this Court’s opinion

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in Saldana v Kelsey-Hayes Co, 178 Mich App 230; 443

NW2d 382 (1989), the circuit court added that the TRO

deprived plaintiff of a right to privacy in his computers

and hard drives:

With respect to the plaintiff’s personal information on

the computers, the complaint further alleges that plaintiff

pointed the Dykema defendants to the “one and only hard

drive that would contain Lincoln data” but that the em-

ployees of defendant Guidance copied all of the information

contained on all of plaintiff’s computers and hard drives.

Pursuant to the TRO, the Dykema defendants had a right

to copy hard drives that were potential sources of Lincoln

information. Thus, even when viewed in plaintiff’s favor,

the complaint does not allege facts that show he had a right

to privacy in his hard drives for purposes of carrying out

the TRO. [Citation omitted.]

Plaintiff asserts that the circuit court misconstrued

both Saldana and the TRO, insisting that the TRO

neither invested defendants with a right to violate

plaintiff’s privacy nor deprived plaintiff of his common-

law privacy rights.

The plaintiff in Saldana, a supervisor in one of the

defendant’s facilities, fell from a bicycle in the course of

his employment. Id. at 232. The defendant suspected

the plaintiff of malingering and hired a private investi-

gation firm to “investigate plaintiff and to attempt to

determine the extent of plaintiff’s injuries.” Id. The

investigators employed a variety of surveillance tech-

niques, including observing the plaintiff through an

open window with a 1,200-millimeter camera lens and

posing as a process server “for the purpose of looking

around plaintiff’s home[.]” Id. at 233. The plaintiff

brought an invasion of privacy action asserting an

intrusion on his seclusion. Id.

This Court first determined that the plaintiff “can

show an intrusion,” because “agents of defendants

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entered plaintiff’s home under false pretenses” and

“the use of a powerful lens to observe the interior of a

home or of a subterfuge to enter a home could be found

objectionable to a reasonable person.” Id. at 234. How-

ever, because the defendants’ surveillance of the plain-

tiff “involved matters which defendants had a legiti-

mate right to investigate,” this Court concluded that

the plaintiff failed to allege facts that showed the

intrusions “were into matters which plaintiff had a

right to keep private.” Id. This Court explained that the

“duty to refrain from intrusion into another’s private

affairs is not absolute in nature, but rather is limited by

those rights which arise from social conditions, includ-

ing the business relationship of the parties.” Id. (empha-

sis in original). The Court concluded that the plaintiff’s

privacy interest in his home “was subject to the legiti-

mate interest of his employer in investigating suspi-

cions that plaintiff’s work-related disability was a pre-

text.” Id. at 235.

We find Saldana readily distinguishable from this

case. In Saldana, the nature of the parties’ relationship

limited the plaintiff’s right to privacy concerning the

matter the defendant investigated: whether the plain-

tiff suffered from work-related disabilities. Here, defen-

dants and plaintiff shared no special relationship, busi-

ness or otherwise, and defendants possessed no

legitimate interest in viewing plaintiff’s apartment or

copying computer data unrelated to Lincoln. Further-

more, we reject the circuit court’s conclusion that the

TRO divested plaintiff of his right to privacy in his

apartment and computer hard drives. The TRO af-

forded defendants no right whatsoever to enter or

search plaintiff’s apartment.

Regarding plaintiff’s com-

The common law reflects “reverence...fortheindividual’s right of

privacy in his house.” Miller v United States, 357 US 301, 313; 78 S Ct

308 287 M

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puters, the TRO entitled Lincoln’s agent to copy hard

drives and other electronic media “which contain any

Lincoln Customer Records....” But no provision in

the TRO authorized defendants to copy personal com-

puter data unrelated to Lincoln.

Moreover, we find no

support for the circuit court’s determination that de-

fendants “had a right to copy hard drives that were

potential sources of Lincoln information.” (Emphasis

added.) The TRO neither mentions “potential” sources

of information nor in any manner expands the reach of

defendants’ copying authority beyond matters directly

related to Lincoln.

Plaintiff’s amended complaint avers that he “had a

right to privacy in his own home and a right to keep

private the private information on his computers and

hard drives,” and that defendants invaded plaintiff’s

1190;2LEd2d1332 (1958). Nothing in the language of the TRO

supports a construction of that document as the equivalent of a warrant

permitting entry into plaintiff’s apartment or authorizing a search and

seizure therein.

Defendants offer a patently unreasonable suggested interpretation of

¶ 9 of the TRO, the meaning of which “involves questions of law that we

review de novo on appeal.” Silberstein v Pro-Golf of America, Inc, 278

Mich App 446, 460; 750 NW2d 615 (2008). Defendants dispute the

portion of ¶ 9 instructing that plaintiff and others must

make available...allhard drives and other magnetic, optical or

electronic media in the possession, custody, or control of any of

them, including those hard drives and other magnetic, optical, or

electronic media that they have the effective power to obtain,

which contain any Lincoln Customer Records, for prompt non-

destructive copying....”[Emphasis added.]

Our reading of this provision clearly and unambiguously conveys that the

italicized qualifying language, “which contain any Lincoln Customer

Records,” refers and applies to the previously referenced electronic media

whether in the possession of the specifically identified individuals like

plaintiff or within their “effective power to obtain....”Stated differ-

ently, in this case defendants plainly had entitlement to access only those

Lincoln customer records in plaintiff’s actual or constructive possession.

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privacy “by intruding upon his seclusion or solitude and

into his private affairs, and obtained access to [plain-

tiff’s] home and information about his private affairs by

methods objectionable to a reasonable person.” This

averment adequately sets forth a claim of invasion of

privacy by intrusion on seclusion. The plain language of

the TRO in no way renders unenforceable plaintiff’s

intrusion on seclusion claim.

Defendants alternatively maintain that plaintiff ex-

pressly or impliedly consented to the intrusion on his

seclusion by allowing Ferroli and the Guidance Soft-

ware personnel into his apartment and permitting them

to copy his computer data. We resolve this contention by

referring to our Supreme Court’s landmark decision in

De May and this Court’s analysis in Lewis. The defen-

dant in De May, a physician, set out on “a dark and

stormy” night to attend to the plaintiff, a patient in

labor. De May, 46 Mich at 162. Because Dr. De May “was

sick and very much fatigued from overwork,” he asked

a defendant, Alfred Scattergood, “a young unmarried

man, a stranger to the plaintiff and utterly ignorant of

the practice of medicine,” to accompany and assist him.

Id. at 161-162. When they arrived at the plaintiff’s

home, Dr. De May told the plaintiff’s husband, “ ‘I had

fetched a friend along to help carry my things’....”Id.

at 162. Neither the plaintiff nor her husband objected to

Scattergood’s presence, and during most of the plain-

tiff’s labor Scattergood sat facing a wall. Id. at 162, 165.

At one point, Dr. De May asked Scattergood to assist by

holding the plaintiff’s hand “during a paroxysm of

pain....”Id. at 162. The plaintiff brought suit when

she ascertained Scattergood’s true identity and lack of

medical training, contending that Dr. De May deceived

her into believing that Scattergood “was an assistant

physician....”Id. at 161.

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The Supreme Court held that the “plaintiff had a

legal right to the privacy of her apartment at such a

time, and the law secures to her this right by requiring

others to observe it, and to abstain from its violation.”

Id. at 165-166. Notwithstanding that Scattergood and

Dr. De May “were bidden to enter, treated kindly and no

objection whatever [was] made to the presence of de-

fendant Scattergood,” id. at 162, the Supreme Court

declined to hold that the plaintiff had consented to

Scattergood’s intrusion on her privacy:

The fact that at the time, she consented to the presence

of Scattergood supposing him to be a physician, does not

preclude her from maintaining an action and recovering

substantial damages upon afterwards ascertaining his true

character. In obtaining admission at such a time and under

such circumstances without fully disclosing his true char-

acter, both parties were guilty of deceit, and the wrong thus

done entitles the injured party to recover the damages

afterwards sustained, from shame and mortification upon

discovering the true character of the defendants. [Id.at

166.]

This Court revisited De May in Lewis, a case that

“involve[d] the surreptitious, nonconsensual videotap-

ing of intimate acts of sexual relations in defen-

dant[’s]...bedroom.” Lewis, 258 Mich App at 178. A

jury found that the defendant had violated the plain-

tiffs’ common-law rights to privacy. The defendant

argued on appeal that because the plaintiffs had con-

sented to having sex with him, as a matter of law he had

not invaded their privacy. Id. at 191. This Court ac-

knowledged that “there can be no invasion of privacy

under the theory of intrusion upon the seclusion of

plaintiffs if plaintiffs consented to defendant’s intru-

sion (videotaping).” Id. at 194. However, “[t]he question

of waiver or consent... does not have a zero-sum

answer but, rather, presents an issue of the degree or

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extent of waiver or consent granted, which depends on

the facts and circumstances of the case.” Id. Because

the evidence in Lewis could support the plaintiffs’

contention that the defendant had videotaped the plain-

tiffs without their knowledge or consent, this Court

concluded that a factual question had existed on which

reasonable minds could differ with respect to the scope

of the plaintiffs’ consent to the taping.

The Court in Lewis characterized De May as illus-

trating that “[t]he deceitful presence of a medically

unqualified, unnecessary person” exceeded the plain-

tiff’s consent to the presence of “any necessary physi-

cian’s assistants.” Id. The Court in Lewis further

referenced the following statement from this Court’s

opinion in Earp v Detroit, 16 Mich App 271, 278 n 5; 167

NW2d 841 (1969):

The right of privacy may be waived by the individual or

by anyone authorized by him, and this waiver may be

either express or implied.... The existence of a waiver

carries with it the right to an invasion of privacy only to

such an extent, however, as may be legitimately necessary

and proper in dealing with the matter which has brought

about the waiver, or, as otherwise stated, only to the extent

warranted by the circumstances which brought about the

waiver. [Quotation marks and citation omitted.]

And in Saldana, 178 Mich App at 234, this Court found

that the plaintiff established an intrusion based on the

defendants’ agents’ entry into the plaintiff’s home

“under false pretenses.”

Here, plaintiff’s amended complaint alleges that de-

fendants obtained consent to enter the apartment

through a combination of subterfuge and threat: “Fer-

roli said he had a federal court subpoena that allowed

him and the other men to come inside [plaintiff’s]

apartment to either take his computers and hard drives

312 287 M

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296 [Feb

or copy what was on them.” The amended complaint

also avers that plaintiff withheld consent to defendants’

copying of anything other than “the one and only hard

drive that would contain Lincoln data.” These aver-

ments fall squarely within the legal analyses and hold-

ings presented in De May and Lewis. As described in the

amended complaint, the circumstances surrounding

defendants’ entry into plaintiff’s apartment and the

copying of his computer hard drives reasonably suggest

that defendants’ artifice and dishonesty enticed plain-

tiff’s consent. “Generally, the scope of a waiver or

consent will present a question of fact for the jury[.]”

Lewis, 258 Mich App at 195. As in Lewis, id., when

viewed in the light most favorable to plaintiff, the

amended complaint presents factual questions on which

reasonable minds could differ with respect to whether

defendants gained admission to plaintiff’s premises by

deceit, as in De May, or exceeded the scope of the

consent plaintiff extended, as in Lewis and Earp.

Defendants lastly argue regarding the invasion of

privacy count that plaintiff’s complaint contains no

facts supporting plaintiff’s allegation that defendants

obtained private information through a method that

might be objectionable to a reasonable person, or that

defendants ever viewed the information they copied.

Whether a reasonable person would find an intrusion

objectionable constitutes a factual question best deter-

mined by a jury. Saldana, 178 Mich App at 234. In

Saldana, this Court specifically opined that use “of a

subterfuge to enter a home could be found objectionable

to a reasonable person.” Id. We conclude that as alleged,

defendants’ entry of plaintiff’s apartment under false

pretenses and their disregard of his instructions about

the location of the Lincoln-related information they

desired could be found objectionable by a reasonable

juror. Furthermore, “An action for intrusion upon se-

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clusion focuses on the manner in which the information

was obtained, not on the information’s publication.”

Lewis, 258 Mich App at 193 (emphasis added). In

Harkey v Abate, 131 Mich App 177, 182; 346 NW2d 74

(1983), this Court adopted the Restatement’s view that

[t]he type of invasion of privacy asserted by plaintiff does

not depend upon any publicity given to the person whose

interest is invaded, but consists solely of an intentional

interference with his or her interest in solitude or seclusion

of a kind that would be highly offensive to a reasonable

person. [Id., citing 3 Restatement Torts, 2d, § 652B, p 378.]

Therefore, irrespective of whether defendants ever

viewed the copied information, the amended com-

plaint’s description of the methods defendants em-

ployed to obtain the data adequately pleaded an inva-

sion of plaintiff’s seclusion.

In summary, because plaintiff’s amended complaint

adequately sets forth a claim for invasion of privacy by

intrusion on seclusion, we conclude that the circuit

court improperly granted defendants summary disposi-

tion of this claim under MCR 2.116(C)(8).

C. TRESPASS

Plaintiff next challenges the circuit court’s ruling

that his amended complaint “failed to state the element

of unauthorized entry that is necessary for a claim of

trespass.” The circuit court reasoned that defendants

“had a nonconsensual privilege to enter plaintiff’s

apartment for the purpose of” executing the TRO. In

support of this conclusion, the circuit court cited this

Court’s decision in Antkiewicz v Motorists Mut Ins Co,

91 Mich App 389; 283 NW2d 749 (1979), vacated in part

on other grounds 407 Mich 936 (1979), and 2 Restate-

ment Torts, 2d, § 210. Defendants suggest that because

plaintiff refused to allow his computers to be taken

314 287 M

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296 [Feb

from his apartment, the circuit court correctly deter-

mined that the TRO authorized entry of the apartment

for duplication of the hard drives.

A trespass is an unauthorized invasion on the private

property of another. American Transmission, Inc v

Channel 7 of Detroit, Inc, 239 Mich App 695, 705; 609

NW2d 607 (2000). In Antkiewicz, 91 Mich App at 396,

the Court explained that “[n]ormally, a public officer

who is on the premises of another pursuant to legal

authorization is not liable for trespass.” The circuit

court in this case recognized that defendants do not

qualify as public officers, but opined that they possessed

analogous powers under 2 Restatement Torts, 2d,

§ 210, which provides as follows:

The privilege to execute an order of a court directing the

actor to put a third person in possession of land of which

another is in possession, or to do any other act on the land,

carries with it the privilege to enter the land for the

purpose of executing the order, provided that any writ

issued for the execution of the order is valid or fair on its

face.

Irrespective that Michigan has not adopted this section

of the Restatement, we decline to apply § 210 here because

it bears no relevance to the facts of this case. The TRO

neither authorized defendants to take possession of plain-

tiff’s land nor invested them with the authority “to do any

other act on the land....”TheTROrequired plaintiff “to

provide for prompt copying” of his computer data concern-

ing Lincoln and permitted Lincoln’s agents to copy the

data, but it afforded defendants no right to enter plain-

tiff’s apartment, either to obtain the computer hard drives

or to accomplish the copying. Consequently, we reject as

unfounded the circuit court’s conclusion that the lan-

guage of the TRO contemplated or authorized an entry

into plaintiff’s apartment.

2010] D

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Whether plaintiff consented to defendants’ entry into

his apartment presents a more difficult question. Plain-

tiff’s amended complaint avers that he allowed defen-

dants to enter his apartment on the basis of their

misrepresentation that the TRO permitted them “to

either take his computers and hard drives or copy what

was on them.” Michigan has not squarely considered

whether in an action for trespass a misrepresentation

utilized to secure a homeowner’s consent to enter a

private home vitiates the homeowner’s consent. In

American Transmission, this Court considered a some-

what similar issue. The American Transmission plain-

tiffs sued a television station that had recorded the

interactions between a decoy customer and the plain-

tiffs’ transmission repair personnel. The plaintiffs’

complaint asserted that the defendants had committed

a trespass when they “gained entry by concealing their

true identity and misrepresenting their agent’s rela-

tionship to them....” American Transmission, 239

Mich App at 699-700. This Court upheld the order

granting summary disposition of the plaintiffs’ trespass

claim in favor of the defendants, finding that although

the decoy customer “misrepresented her purpose, plain-

tiffs’ consent was still valid because she did not invade

any of the specific interests relating to the peaceable

possession of land that the tort of trespass seeks to

protect.” Id. at 708. The Court emphasized that the

decoy customer had entered only public areas of the

plaintiffs’ transmission shop and videotaped a “profes-

sional discussion....”Id. at 709. The decoy customer

“did not disrupt the shop or invade anyone’s private

space, and the videotape she made did not reveal the

intimate details of anybody’s life.” Id.

In American Transmission, 239 Mich App at 708,

this Court cited favorably a case decided by the United

States Court of Appeals for the Seventh Circuit,

316 287 M

ICH

296 [Feb

Desnick v American Broadcasting Cos, Inc, 44 F3d 1345

(CA 7, 1995). In Desnick, the Seventh Circuit, in an

opinion authored by Chief Judge Richard Posner, re-

jected the contention that journalists posing as test

patients at an eye surgery center had committed a

trespass, reasoning that the test patients’ entry did not

invade

any of the specific interests that the tort of trespass seeks

to protect. The test patients entered offices that were open

to anyone expressing a desire for ophthalmic services and

videotaped physicians engaged in professional, not per-

sonal, communications with strangers (the testers them-

selves). The activities of the offices were not disrupted....

Nor was there any inva[sion of] a person’s private

space,...asinthefamous case of De May v. Roberts,46

Mich 160, 9 N.W. 146 (1881) (where a doctor, called to the

plaintiff’s home to deliver her baby, brought along with him

a friend who was curious to see a birth but was not a

medical doctor, and represented the friend to be his medical

assistant)....[Id. at 1352 (quotation marks omitted).]

As the Seventh Circuit recognized in Desnick, impor-

tant distinctions differentiate misrepresentations di-

rected to gain entry to business concerns and those

employed to enter a private home. The Seventh Circuit

acknowledged that in a true trespass case, “there can be

no implied consent in any nonfictitious sense of the

term when express consent is procured by a misrepre-

sentation or a misleading omission.” Id. at 1351. The

court posited the following illustrative example: “If a

homeowner opens his door to a purported meter reader

who is in fact nothing of the sort—just a busybody

curious about the interior of the home—the homeown-

er’s consent to his entry is not a defense to a suit for

trespass.” Id. at 1352. Nevertheless, the law sometimes

deems effective in the trespass context a consent pro-

cured by misrepresentation. The Seventh Circuit in

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Desnick explained the difference between the two

classes of cases by contrasting the phony meter reader

intruding into a home with a phony customer, reminis-

cent of the defendants in American Transmission:

T]he homeowner victimized by the phony meter reader

does not want strangers in his house unless they have

authorized service functions. The dealer’s objection to the

customer who claims falsely to have a lower price from a

competing dealer is not to the physical presence of the

customer, but to the fraud that he is trying to perpetuate.

[Id.]

A decision of the United States Court of Appeals for

the Ninth Circuit, Theofel v Farey-Jones, 359 F3d 1066

(CA 9, 2004), further illustrates that the character of a

particular deceit remains critical to a determination of

the implicated privacy interests. In Theofel, the plain-

tiffs cooperated with a faulty subpoena issued by the

defendants, federal court litigants, and the Ninth Cir-

cuit considered whether the plaintiffs’ cooperation op-

erated as a consent to disclosure of otherwise protected

information. The Ninth Circuit analogized to the com-

mon law of trespass and, citing Desnick, concluded that

the plaintiffs had alleged facts that vitiated their appar-

ent consent:

A defendant is not liable for trespass if the plaintiff

authorized his entry. See Prosser & Keeton § 13, at 70. But

“an overt manifestation of assent or willingness would not

be effective... if the defendant knew, or probably if he

ought to have known in the exercise of reasonable care,

that the plaintiff was mistaken as to the nature and quality

of the invasion intended.” Id.§18,at119....

Not all deceit vitiates consent. “[T]he mistake must

extend to the essential character of the act itself, which is

to say that which makes it harmful or offensive, rather

than to some collateral matter which merely operates as an

inducement.” Prosser & Keeton §18,at120....Inother

318 287 M

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296 [Feb

words, it must be a “substantial mistake[]...concerning

the nature of the invasion or the extent of the harm.”

Restatement (Second) of Torts § 892B(2) cmt. g....

[T]he theory is that some invited mistakes go to the

essential nature of the invasion while others are merely

collateral. Classification depends on the extent to which

the intrusion trenches on “the specific interests that the

tort of trespass seeks to protect.” Desnick, 44 F.3d at

1352....

***

Under this standard, plaintiffs have alleged facts that

vitiate [their internet service provider] NetGate’s consent.

NetGate disclosed the sample in response to defendants’

purported subpoena. Unbeknownst to NetGate, that sub-

poena was invalid. This mistake went to the essential

nature of the invasion of privacy. The subpoena’s falsity

transformed the access from a bona fide state-sanctioned

inspection into private snooping. The false subpoena

caused disclosure of documents that otherwise would have

remained private; it effected an “invasion...ofthespecific

interests that the [statute] seeks to protect.” Desnick,44

F.3d at 1352. [Theofel, 359 F3d at 1073-1074 (some cita-

tions omitted).]

The Ninth Circuit concluded that “[b]ecause defen-

dants procured consent by exploiting a mistake of which

they had constructive knowledge, the district court

erred by dismissing based on that consent.” Id. at 1075.

Although Theofel involved an invalid subpoena rather than a valid

TRO, we find instructive its discussion regarding the duties attendant on

those who invoke the powers of the court:

The subpoena power is a substantial delegation of authority to

private parties, and those who invoke it have a grave responsibility

to ensure it is not abused. Informing the person served of his right

to object is a good start, see Fed.R.Civ.P. 45(a)(1)(D), but it is no

substitute for the exercise of independent judgment about the

subpoena’s reasonableness. Fighting a subpoena in court is not

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“[T]respass is an invasion of the plaintiff’s interest in

the exclusive possession of his land....” Adams v

Cleveland-Cliffs Iron Co, 237 Mich App 51, 59; 602 NW2d

215 (1999) (quotation marks and citation omitted). Under

the common law, a trespass on land violated the landown-

er’s right to exclude others from the premises. Id.at60.

Here, plaintiff’s amended complaint avers that defen-

dants obtained his consent to enter the apartment by

representing that a “federal court subpoena” authorized

their access to the inside of plaintiff’s apartment, that

defendants’ entry constituted a trespass, and that “[t]hey

intended to intrude on [plaintiff’s] private property with-

out authorization to do so.” We conclude that these

averments adequately delineate a trespass claim and that

defendants’ alleged misrepresentations could reasonably

be found to have vitiated plaintiff’s consent to the entry of

his apartment. Because the interest protected by the

common-law tort of trespass is identical to that identified

in plaintiff’s amended complaint, this case more closely

parallels the phony meter reader’s entry into a residence

than the decoy customers’ entries into business premises.

Accordingly, we reverse the circuit court’s grant of sum-

mary disposition in defendants’ favor of the trespass

claim.

D. INTENTIONAL OR RECKLESS INFLICTION

OF EMOTIONAL DISTRESS

Plaintiff further asserts that the circuit court erred by

granting in defendants’ favor summary disposition of his

claim for intentional or reckless infliction of emotional

distress. According to plaintiff, reasonable minds could

differ with respect to whether defendants’ conduct quali-

fied as outrageous in light of Ferroli’s status as a lawyer,

cheap, and many may be cowed into compliance with even over-

broad subpoenas, especially if they are not represented by counsel

or have no personal interest at stake. [Id. at 1074-1075.]

320 287 M

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296 [Feb

plaintiff’s AIDS-related disability, and the prolonged time

defendants spent in plaintiff’s bedroom. “To establish a

prima facie claim of intentional infliction of emotional

distress, the plaintiff must present evidence of (1) the

defendant’s extreme and outrageous conduct, (2) the

defendant’s intent or recklessness, (3) causation, and (4)

the severe emotional distress of the plaintiff.” Walsh, 263

Mich App at 634. “[O]nly when a plaintiff can demon-

strate that the defendant’s conduct is ‘so outrageous in

character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atro-

cious and utterly intolerable in a civilized community’ ”

will liability attach. Id., quoting Graham v Ford, 237 Mich

App 670, 674; 604 NW2d 713 (1999). “[M]ere insults,

indignities, threats, annoyances, petty oppressions, or

other trivialities” do not give rise to liability for inten-

tional infliction of emotional distress. Doe, 212 Mich App

at 91. Initially, the trial court must determine whether a

defendant’s conduct qualifies as so extreme and outra-

geous as to permit recovery for intentional infliction of

emotional distress. Sawabini v Desenberg, 143 Mich App

373, 383; 372 NW2d 559 (1985).

Even accepting as true the allegations in plaintiff’s

amended complaint, they fail to describe conduct so

extreme or outrageous that it surpasses all bounds of

decency in a civilized society. Assuming that Ferroli

misled plaintiff about the scope of the TRO, defendants’

conduct inside plaintiff’s apartment simply does not

amount to atrocious or extreme behavior. At worst,

defendants’ engaged in actions that were annoying and

oppressive, but these actions do not rise to the level of

outrageousness necessary to establish a claim for inten-

tional infliction of emotional distress. We thus conclude

that the circuit court correctly dismissed this claim

under MCR 2.116(C)(8).

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E. ABUSE OF PROCESS

Plaintiff additionally contends that the circuit court

improperly granted summary disposition in defendants’

favor of his abuse of process count.

A meritorious claim of abuse of process contemplates a

situation where the defendant has availed himself of a

proper legal procedure for a purpose collateral to the

intended use of that procedure, e.g., where the defendant

utilizes discovery in a manner consistent with the rules of

procedure, but for the improper purpose of imposing an

added burden and expense on the opposing party in an

effort to conclude the litigation on favorable terms. [Val-

lance v Brewbaker, 161 Mich App 642, 646; 411 NW2d 808

(1987).]

In a case alleging abuse of process, the pleadings must

allege with specificity an act committed in the use of

process “that is improper in the regular prosecution of

the proceeding.” Early Detection Ctr, PC v New York

Life Ins Co, 157 Mich App 618, 629; 403 NW2d 830

(1986). A complaint must allege more than the mere

issuance of the process, because an “action for abuse of

process lies for the improper use of process after it has

been issued, not for maliciously causing it to issue.”

Friedman v Dozorc, 412 Mich 1, 31; 312 NW2d 585

(1981) (quotation marks and citation omitted). A claim

asserting nothing more than an improper motive in

properly obtaining process does not successfully plead

an abuse of process. Young v Motor City Apartments Ltd

Dividend Housing Ass’n No1&No2, 133 Mich App

671, 681; 350 NW2d 790 (1984).

Plaintiff’s amended complaint alleges that defen-

dants harbored an “ulterior purpose” to “serve Lin-

coln’s strategy of intimidating and harassing Ellis, and

give Lincoln a tactical business advantage over Ellis

when there was no factual basis for the proceeding.”

322 287 M

ICH

296 [Feb

Even assuming that plaintiff may properly assert a

collateral purpose directed solely at harming a third

party, the amended complaint fails to allege with speci-

ficity any acts committed in furtherance of this purpose.

Moreover, “the ulterior purpose alleged must be more

than harassment, defamation, exposure to excessive

litigation costs, or even coercion to discontinue busi-

ness.” Early Detection Ctr, 157 Mich App at 629-630. We

agree with the circuit court’s finding that plaintiff

simply did not identify an act or facts supporting the

allegation that defendants used the TRO for an im-

proper, collateral purpose. However, pursuant to MCR

2.116(I)(5), the circuit court must afford plaintiff an

opportunity to amend his complaint to set forth his

abuse of process claim in greater detail.

F. TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP

OR EXPECTANCY

Plaintiff lastly disputes the circuit court’s grant of

summary disposition in defendants’ favor concerning

his claim for tortious interference with a business

relationship or expectancy.

The elements of tortious interference with a business

relationship are the existence of a valid business relation-

ship or expectancy, knowledge of the relationship or expect-

ancy on the part of the defendant, an intentional interfer-

ence by the defendant inducing or causing a breach or

termination of the relationship or expectancy, and result-

ant damage to the plaintiff. [BPS Clinical Laboratories v

Blue Cross & Blue Shield of Michigan (On Remand), 217

Mich App 687, 698-699; 552 NW2d 919 (1996).]

To fulfill the third element, intentional interference

inducing or causing a breach of a business relationship,

a plaintiff must demonstrate that the defendant acted

both intentionally and either improperly or without

justification. Bonelli v Volkswagen of America, Inc, 166

2010] D

ALLEY V

YKEMA

OSSETT

323

Mich App 483, 498; 421 NW2d 213 (1988). To establish

that a defendant’s conduct lacked justification and

showed malice, “the plaintiff must demonstrate, with

specificity, affirmative acts by the defendant that cor-

roborate the improper motive of the interference.” BPS

Clinical Laboratories, 217 Mich App 699. “Where the

defendant’s actions were motivated by legitimate busi-

ness reasons, its actions would not constitute improper

motive or interference.” Id.

Plaintiff’s amended complaint asserts that defen-

dants knew or should have known that their pursuit of

the TRO and a vindictive, groundless lawsuit against

Ellis would disrupt plaintiff’s business relationship

with Ellis and Lucasse. These allegations do not set

forth a claim for tortious interference with a business

relationship. “[I]n order to succeed under a claim of

tortious interference with a business relationship, the

plaintiffs must allege that the interferer did something

illegal, unethical or fraudulent. There is nothing illegal,

unethical or fraudulent in filing a lawsuit, whether

groundless or not.” Early Detection Ctr, 157 Mich App

at 631 (citation omitted). We also decline to find that

defendants’ pursuit of the TRO amounts to illegal,

unethical, or fraudulent conduct and conclude, as did

the circuit court, that plaintiff’s amended complaint

fails to allege any act of improper interference sufficient

to allow him to maintain his tortious interference claim.

III. ADDITIONAL ISSUES

Because the circuit court granted defendants sum-

mary disposition of all claims pleaded in the amended

complaint, the court declined to address (1) Lincoln’s

argument that as a matter of law plaintiff cannot

establish its vicarious liability; (2) Dykema and Ferroli’s

motion for summary disposition premised on MCR

324 287 M

ICH

296 [Feb

2.116(C)(10); and (3) Dykema and Ferroli’s contention

that a litigation privilege entitles them to judgment as a

matter of law. We similarly decline to address these

additional issues raised by defendants on which the

circuit court reserved ruling. People v Herrick, 277 Mich

App 255, 259; 744 NW2d 370 (2007) (observing that

generally appellate review is limited to issues decided

by the trial court).

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

2010] D

ALLEY V

YKEMA

OSSETT

325

MICHIGAN DEFERRED PRESENTMENT SERVICES

ASSOCIATION, INC v COMMISSIONER OF THE OFFICE OF

FINANCIAL AND INSURANCE REGULATION

Docket No. 292685. Submitted January 6, 2010, at Detroit. Decided

February 18, 2010, at 9:00 a.m.

The Michigan Deferred Presentment Services Association, Inc., an

association of companies licensed under the Deferred Presentment

Service Transactions Act (DPSTA), MCL 487.2121 et seq., which

regulates the business of payday lending and of other businesses

that provide short-term advancements of money to consumers up

to the statutory limit of $600, brought an action in the Oakland

Circuit Court, Michael Warren, J., against the Commissioner of the

Office of Financial and Insurance Regulation, seeking declaratory

and injunctive relief on the basis that an administrative order

issued by defendant violated state and federal constitutional

provisions and civil rights protections. The order required the

licensees to limit their recovery with respect to a check returned

due to insufficient funds to the face amount of the check, a

returned check charge of $25, and, in the event of a lawsuit, court

costs, as provided in the DPSTA and to not seek, under MCL

600.2952 of the Revised Judicature Act (RJA), the recovery of

treble damages. The trial court granted injunctive relief in favor of

plaintiff and struck down the administrative order as an uncon-

stitutional infringement of the right of access to the courts.

Plaintiff appealed and defendant cross-appealed.

The Court of Appeals held:

1. The administrative order correctly interpreted the DPSTA

to limit a payday lender’s remedy to the face amount of the check

plus a $25 return check charge, instead of the treble damages

permitted by MCL 600.2952.

2. The section of the RJA at issue, MCL 600.2952, and the section

of the DPSTA at issue, MCL 487.2158, relate to the same subject

matter and are in pari materia. The two statutes irreconcilably

conflict, therefore, the DPSTA, the more specific statute with regard

to payday lenders, controls the remedies available to a payday lender.

3. The DPSTA also controls because, in enacting the DPSTA,

the Legislature preserved other preexisting legal remedies avail-

326 287 M

ICH

326 [Feb

able to a person given a check that is dishonored because of a

closed account or a stop payment order but did not preserve

preexisting legal remedies against a person who gives a check that

is later returned because of nonsufficient funds.

4. The administrative order merely prohibits payday lenders

from violating a statute they must follow. No caselaw holds that an

administrative agency violates an entity’s constitutional rights by

advising it to follow the law.

5. No violation of 42 USC 1983 occurred because payday

lenders are not being denied access to the courts. The DPSTA

authorizes defendant to notify payday lenders of the consequences

of choosing to violate the DPSTA.

6. The trial court’s January 14, 2009, opinion and order must

be reversed and its February 25, 2009, judgment must be vacated.

The subsequent award of attorney fees and costs and the opinion

and order denying plaintiff’s motion to enforce the earlier order

and judgment must be vacated and the matter must be remanded

for further proceedings.

Reversed in part, vacated in part, and remanded.

ILLS,

OTES, AND

HECKS —

EFERRED

RESENTMENT

ERVICE

RANSACTIONS

CT —

EVISED

UDICATURE

CT —

ONFLICT OF

AWS

Both MCL 600.2952, a section of the Revised Judicature Act, and

MCL 487.2158, a section of the Deferred Presentment Service

Transactions Act, relate to the same subject matter by specifying

remedies available to entities that have been given a check that is

later returned by the drawee because insufficient funds are

available in the account to honor the check; the statutes are in pari

materia, therefore, the more specific statute controls where there

is an irreconcilable conflict; the Deferred Presentment Service

Transactions Act controls the remedies available to a lender

licensed under the act that is given an insufficient funds check

because the remedy it provides irreconciliably conflicts with the

remedy provided by the Revised Judicature Act.

Fried Porter, PLLC (by Louis J. Porter), for plaintiff.

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

Solicitor General, and David W. Silver, Assistant Attor-

ney General, for defendant.

Before: W

ILDER

,P.J., and O’C

ONNELL

and T

ALBOT

,JJ.

2010] MDPSA

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URIAM

. This civil rights dispute brought under

42 USC 1983 concerns an administrative order issued

by defendant, Commissioner of the Office of Financial

and Insurance Regulation (OFIR), that allegedly pro-

hibited plaintiff’s members from seeking, in this state’s

courts, treble damages for nonsufficient funds (NSF)

checks given by their customers. In its January 14,

2009, opinion and order, the lower court struck down

defendant’s administrative order as an unconstitu-

tional infringement of the right of access to the courts.

We reverse in part, vacate in part, and remand for

proceedings consistent with this opinion.

Plaintiff is an association of companies licensed un-

der the Deferred Presentment Service Transactions Act

(DPSTA), MCL 487.2121 et seq., which is a statute that

regulates the business of payday lending and of other

businesses that provide short-term advancements of

money to consumers up to the statutory limit of $600.

The OFIR, formerly known as the Office of Financial

and Insurance Services, is part of the Michigan Depart-

ment of Energy, Labor, and Economic Growth.

Before passage of the DPSTA, payday lenders who

received checks that were returned to them for nonsuf-

ficient funds obtained judgments under MCL

600.2952(4), a provision of the Revised Judicature Act

(RJA) that allows for treble damages for a dishonored

check under some circumstances.

The RJA also autho-

rizes recovery of a small processing fee and court costs

of $250. MCL 600.2952(4).

MCL 600.2952(4) states:

Except as otherwise provided in subsection (5), a maker who

fails to make payment pursuant to subsection (3) and who is found

responsible for payment in a civil action is liable to the payee for

payment of all of the following:

(a) The full amount of the check, draft, or order.

328 287 M

ICH

326 [Feb

In 2005, the Legislature passed the DPSTA to regulate

payday lenders and to curb abuses within the industry.

The DPSTA became effective on November 28, 2005. 2005

PA 244; MCL 487.2121. Under the DPSTA, a payday loan

is called a deferred presentment service transaction. MCL

487.2122(1)(g). Under such a transaction, for a fee, the

payday lender gives the customer a certain amount of

money in exchange for a check in repayment of the loan;

the lender then holds the customer’s check for a period

before presentment to the drawee bank. See MCL

487.2122(1)(g), (h). The DPSTA requires that entities

engaged in such lending receive a license. MCL 487.2131.

According to defendant, 788 licenses had been issued

under this act. The DPSTA also limits the amount that a

licensee could collect for a returned check to the face

amount of the check amount plus $25. MCL 487.2158.

It is undisputed that, after passage of the DPSTA,

payday lenders continued to seek and obtain damages

under MCL 600.2952.

On April 3, 2008, defendant

issued the administrative order at issue in this case.

The administrative order explained, “To stop current

practices by some licensees and to prevent the spread of

these unlawful actions, it is necessary and appropriate

to issue an order directing licensees to conform to the

limitations in MCL 487.2158 regarding checks returned

due to insufficient funds.” The administrative order

also noted:

(b) Civil damages of 2 times the amount of the dishonored

check, draft, or order or $100.00, whichever is greater.

For example, one payday lender, Cash Now XV, LLC (Cash Now), filed

a claim in the small claims division of the 36th District Court against a

customer for damages resulting from a check returned NSF. The claim

was filed on May 7, 2007, and Cash Now requested damages under MCL

600.2952 of the RJA.

2010] MDPSA

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MCL 487.2167 gives the Commissioner the power to

revoke licenses for violations of the [DPSTA] and his

orders, such as this Order, if he finds that a licensee has

done so “knowingly or through lack of due care.”

MCL 487.2168 authorizes the Commissioner to impose

civil fines for violation of the [DPSTA]. If the Commis-

sioner finds that a licensee “knew or reasonably should

have known” that he or she was in violation of the Act, the

Commissioner may order the licensee to pay a civil fine of

not less than $5,000 or more than $50,000 for each viola-

tion.

***

When the staff of this agency examines the books and

records of a licensee, the staff will evaluate compliance

with this Order as part of its examination.

The administrative order concluded, “Therefore, it is

ORDERED that licensees shall not, with respect to a

check returned due to insufficient funds, recover any-

thing other than the face amount of the check, a

returned check charge of $25.00, and, in the event of a

lawsuit, court costs. In particular, a licensee shall not

seek any remedy under MCL 600.2952 with respect to

any check returned due to insufficient funds.” The

administrative order was sent to licensees and posted

on the agency’s website.

On May 22, 2008, plaintiff filed its cause of action

asserting claims for (1) denial of the federal constitu-

tional right of access to the courts under 42 USC 1983;

(2) denial of various state constitutional rights, includ-

ing the right of access to the courts, the right to petition

the government, freedom of speech, due process, and

rights under the fair and just treatment clause; and (3)

violation of the Michigan Constitution’s separation of

powers provision. Plaintiff sought declaratory and in-

junctive relief, but not damages.

330 287 M

ICH

326 [Feb

Both sides moved for summary disposition. Plain-

tiff’s motion, brought under MCR 2.116(C)(10), also

sought a permanent injunction, and plaintiff requested

attorney fees under 42 USC 1988. Defendant’s motion

was brought under MCR 2.116(C)(8) and (10). In its

motion, plaintiff asserted three arguments: (1) that

defendant, through his administrative order, denied

plaintiff’s members their rights of access to the courts,

freedom of speech, and due process of law; (2) that

defendant usurped powers belonging to the judicial

branch; and (3) that defendant has no authority over

collection practices and no standing to assert the rights

of borrowers or customers.

In his motion, defendant explained that before the

DPSTA took effect, the payday lending service sector

was known for its exorbitant fees and hardnosed collec-

tion practices, but the DPSTA changed the landscape

dramatically, requiring licensure of payday lenders after

July 1, 2006, and making the OFIR the state regulator

with enforcement powers. Defendant argued that the

DPSTA’s provision authorizing the commissioner to

“issue orders and rules that he or she considers neces-

sary to enforce and implement this act,” MCL

487.2140(1), constitutes sufficient authority for defen-

dant to issue his April 3, 2008, administrative order.

Defendant argued that the DPSTA’s provision in MCL

487.2158 listing the remedies available to a licensee for

a returned check precluded a licensee from recovering

the more ample remedies available under the RJA.

In an opinion and order dated January 14, 2009, the

lower court granted plaintiff’s motion for summary

disposition and denied defendant’s motion for summary

disposition. The lower court concluded that the admin-

istrative order barred licensees from asserting a legally

tenable position in court where no binding appellate

2010] MDPSA

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decision supported the agency’s interpretation of the

statutory provisions in conflict, and that “such action

unconstitutionally usurps the judicial function, deni-

grates the rule of law, and infringes upon the constitu-

tional right of access to the courts....”

The opinion concluded that defendant’s administra-

tive order sought to overturn orders or judgments

entered by courts, and that defendant lacked authority

to do so. The lower court noted that it is the province of

the judicial department to say what the law is, and that

defendant threatened to sanction a licensee for pursu-

ing certain legal remedies in court. The lower court

stated that an administrative agency may only sanction

a licensee for advocating a legal position in court when

the position is legally baseless, i.e., when no reasonable

litigant could realistically expect success on the merits,

and that the licensees were not advocating legally

baseless claims in seeking treble damages in district

court proceedings. The lower court therefore concluded

that defendant had infringed the licensees’ First

Amendment right of access to the courts. The lower

court granted plaintiff’s request for an injunction, stat-

ing that defendant was enjoined from enforcing or

threatening to enforce the administrative order. Nota-

bly, the lower court never addressed whether the DP-

STA actually precluded licensed payday lenders from

seeking recovery under the RJA.

In so doing, the lower court failed to address the

central issue in this case, namely, whether defendant’s

administrative order correctly interpreted the DPSTA

to limit a payday lender’s remedies when a borrower’s

Ironically, although the lower court based its decision on the notion

that the judiciary, not the executive branch, “says what the law is,” the

lower court never actually made a determination regarding the proper

relationship between the underlying statutes in this case.

332 287 M

ICH

326 [Feb

check is returned for nonsufficient funds to the face

amount of the check plus a $25 returned check charge,

instead of the treble damages permitted by MCL

600.2952. However, this issue must be addressed be-

cause plaintiff’s constitutional claims hinge on the

proposition that defendant’s analysis of the relation-

ship between the DPSTA and the RJA is incorrect and,

therefore, defendant is somehow precluding plaintiff’s

members from seeking the recovery to which they are

legally entitled.

See Prudential Ins Co of America v

Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963).

We conclude that the administrative order is a cor-

rect interpretation of the applicable law. Statutory

construction is a question of law that we review de

novo. McManamon v Redford Charter Twp, 273 Mich

App 131, 134; 730 NW2d 757 (2006). The applicable

principles of statutory construction are well estab-

lished, and we begin our analysis by consulting the

specific statutory language at issue. Provider Creditors

Comm v United American Health Care Corp, 275 Mich

App 90, 95; 738 NW2d 770 (2007). We give effect to the

Legislature’s intent, as expressed in the terms of the

statute, by giving the words of the statute their plain

and ordinary meaning. In re Kostin Estate, 278 Mich

App 47, 57; 748 NW2d 583 (2008). “ ‘When the lan-

guage poses no ambiguity, this Court need not look

beyond the statute or construe the statute, but need

only enforce the statute as written.’ ” Id., quoting

McManamon, supra at 136. We will not interpret a

statute in a way that renders any statutory language

surplusage or nugatory. Pohutski v City of Allen Park,

465 Mich 675, 684; 641 NW2d 219 (2002).

In the lower court proceedings, defendant asserted that his interpre-

tations of the DPSTA and the RJA were correct, preserving this issue for

our review.

2010] MDPSA

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“Statutes that relate to the same subject or that

share a common purpose are in pari materia and must

be read together as one law, even if they contain no

reference to one another and were enacted on different

dates.” Walters v Leech, 279 Mich App 707, 709-710; 761

NW2d 143 (2008). “The object of the in pari materia

rule is to give effect to the legislative intent expressed in

harmonious statutes.” Id. at 710. To the extent that

statutes that are in pari materia are unavoidably in

conflict and cannot be reconciled, the more specific

statute controls. In re Kostin Estate, supra at 57.

The section of the RJA at issue, MCL 600.2952, and

the section of the DPSTA at issue, MCL 487.2158, relate

to the same subject matter. Both statutes specify rem-

edies available to entities that have been given a check

that is later returned by the drawee because insufficient

funds are available in the account to honor the draft.

Therefore, these two statutes are in pari materia.

The two statutory sections irreconcilably conflict.

Although the RJA section would grant treble damages

plus costs to the entity given an NSF check, MCL

600.2952(4), the DPSTA limits the recovery to the face

amount on the check plus a returned check charge of

$25. MCL 487.2158(2), (3). Therefore, the more specific

statute must control. In re Kostin Estate, supra at 57.

The DPSTA is clearly the more specific statute. It

relates only to payday lenders, while the RJA section

relates to any person or entity given a check that is

dishonored by the drawee (i.e., the bank). MCL

600.2952(4). Accordingly, the DPSTA controls the rem-

edies available to a payday lender who is given a check

by a customer when the check, upon deferred present-

ment, is dishonored by the drawee because of insuffi-

cient funds.

334 287 M

ICH

326 [Feb

Defendant also provides an additional valid reason

why the DPSTA should control. MCL 487.2158(2) states

in pertinent part: “In addition to the charge authorized

by this section, a licensee may exercise any other

remedy available under any law applicable to the return

of a check because of a closed account or a stop payment

order.” Thus, the Legislature preserved other preexist-

ing legal remedies available to a person given a check

that is dishonored because of a closed account or a stop

payment order. Under the principle of expressio unius

est exclusio alterius (“the express mention of one thing

implies the exclusion of another”), Wayne Co v Wayne

Co Retirement Comm, 267 Mich App 230, 248, 704

NW2d 117 (2005), we interpret the DPSTA to have

preserved legal remedies existing before its enactment

for checks dishonored for the aforementioned reasons,

but not to have preserved preexisting legal remedies

against a person who gives a check that is later returned

because of nonsufficient funds. Thus, the reason why

the check is dishonored also determines the remedy

available.

Defendant’s interpretation of the applicable provi-

sions of the DPSTA and the RJA was correct. Accord-

ingly, the only thing that defendant is “ordering” the

payday lenders to do is abide by the provisions of the

statute. It is the DPSTA, not defendant or the OFIR,

that ultimately prohibits payday lenders from recover-

ing treble damages under the RJA. The administrative

order simply “prohibits” payday lenders from violating

a statute that they are required to follow anyway. We

know of no caselaw holding that an administrative

agency violates an entity’s constitutional rights by

advising it to follow the law. We also see no error in an

administrative agency correctly explaining the law that

it is charged with enforcing. See Clonlara, Inc v State

Bd of Ed, 442 Mich 230, 240; 501 NW2d 88 (1993)

2010] MDPSA

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(“Agencies have the authority to interpret the statutes

they are bound to administer and enforce.”).

Further, there is no violation of 42 USC 1983 because

payday lenders are not being denied access to the

courts. Payday lenders are not prohibited from filing

claims with district courts to institute causes of action

to recover for NSF checks. MCL 487.2158 expressly

provides for a means of recovery for NSF and other

returned checks, and for the reasons stated earlier,

enactment of the DPSTA statutorily precludes recovery

in the manner provided in the RJA. Plaintiff cannot

claim that a violation of 42 USC 1983 occurred simply

because a newly enacted statute precluded recovery of

certain damages that plaintiff’s members had become

accustomed to receiving in NSF cases.

Further, the administrative order simply informs

payday lenders of the authority that, by statute, the

Legislature granted to the OFIR to enforce the DPSTA

We find it particularly troubling that payday lenders continue to seek

damages under the RJA, in contravention of the DPSTA, against indi-

viduals who do not have the resources or legal acumen to address the

payday lenders’ repeated application of the incorrect statute. Many

customers of payday lenders are individuals who live from paycheck to

paycheck; the point of the payday lending business is to provide short-

term salary advances to individuals who otherwise would not have

enough money to make it to their next payday. Therefore, many of these

default judgments would be against individuals who probably cannot

afford legal representation and who likely are not even aware that the

payday lender sought recovery under the wrong statute. Why would a

down-on-his-luck working person, who needed a payday advance to pay

his bills, whose check to the payday lender subsequently bounced, and

who knew that he still owed money to the payday lender, question the

legality of a judgment requiring him to pay treble damages and costs to

the payday lender? Realistically, how would such an individual even know

that the DPSTA, not the RJA, governed the amount that a payday lender

could recover for his bounced check, and how could that individual,

lacking legal training or the funds to hire an attorney, hope to make such

a technical legal argument?

336 287 M

ICH

326 [Feb

and to respond to violations. If it so chooses, a licensed

payday lender may still file a cause of action with the

district court seeking recovery in excess of what the

DPSTA statutorily permits. The statute, however, per-

mits the OFIR to revoke licenses and impose civil fines

for violations of the DPSTA. The administrative order

notifies payday lenders of the consequences of choosing

to violate the DPSTA, all of which are authorized by

statute. Defendant does not violate 42 USC 1983 by

issuing an administrative order informing payday lend-

ers of the statutorily mandated penalties that they face

if they violate the provisions of the DPSTA.

Accordingly, the January 14, 2009, opinion and order

in this case is reversed, and the February 25, 2009,

judgment in this case is vacated. By extension, the

subsequent determination in this case, including the

circuit court’s award of $121,794.65 in attorney fees

and costs and its opinion and order denying plaintiff’s

motion to enforce the earlier order and judgment are

also vacated. Consequently, plaintiff’s claims on appeal

that the trial court erred by entering a judgment not in

conformity with the requirements of MCR 3.310(C) and

by failing to grant plaintiff a declaratory ruling are

moot.

Plaintiff goes to extreme lengths in crafting its arguments in an

attempt to preclude the Court from addressing whether the DPSTA

supersedes the RJA with regard to the recovery permitted for a NSF

check. Further, although defendant repeatedly maintains that the sub-

stance of the administrative order is correct, plaintiff refuses to address

whether the DPSTA actually precludes payday lenders from recovering

under the RJA for NSF checks in its briefing of this appeal, even as an

alternative argument. We conclude that plaintiff’s refusal to address the

issue whether licensed payday lenders might still seek recovery for NSF

checks under the RJA in a post-DPSTA world is a tacit admission that the

DPSTA, not the RJA, controls. We can think of no other reason why

plaintiff does not address this determinative issue in its brief.

2010] MDPSA

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Reversed in part, vacated in part, and remanded for

proceedings consistent with this opinion. We do not

retain jurisdiction.

338 287 M

ICH

326

DRIVER v NAINI

Docket No. 280844. Submitted May 5, 2009, at Detroit. Decided March 2,

2010, at 9:00 a.m.

Willie and Beverly Driver brought a medical malpractice action in

the Wayne Circuit Court, Kathleen Macdonald, J., against Man-

soor G. Naini, M.D., and Michigan Cardiology Associates, P.C.

(MCA), after Willie was diagnosed with colon cancer in November

2005. Plaintiffs claimed that Dr. Naini failed to refer Willie for a

colonoscopy in a timely manner. Plaintiffs sent Dr. Naini and MCA

a notice of their intent to bring the action on April 25, 2006, and

on October 23, 2006, filed a complaint against Dr. Naini and MCA.

On January 19, 2007, Dr. Naini and MCA filed a notice of nonparty

fault, naming Cardiovascular Clinical Associates, P.C. (CCA), as a

defendant. On February 1, 2007, plaintiffs filed a first amended

complaint that included CCA as a defendant. CCA moved for

summary disposition, alleging failure to comply with the statutes

concerning procedure in medical malpractice actions. The trial

court denied the motion. The Court of Appeals, W

ILDER

,P.J., and

AHRA

and K. F. K

ELLY

, JJ., granted CCA’s application for leave to

appeal, limited to the issues raised in the application, in an

unpublished order, entered March 21, 2008 (Docket No. 280844).

The Court of Appeals held:

1. November 2005 is the latest time at which the claim accrued

because the colon cancer was diagnosed then. Plaintiffs, therefore,

had until November 2007, at the latest, to commence an action

against CCA within the two-year period of limitations.

2. A medical malpractice claimant must give to proposed

defendants notice of the intent to sue at least 182 days before

commencing an action. If the plaintiff gives such notice, the

claimant tolls the two-year limitations period with regard to the

persons who are sent the notice.

3. A plaintiff has not commenced a medical malpractice action

if the plaintiff files a complaint before the notice period expired.

Because plaintiffs filed their first amended complaint before the

notice period expired, they did not commence a medical malprac-

tice action against CCA. The period of limitations continued to run

against CCA and plaintiffs’ claims against CCA are time-barred.

RIVER V

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339

4. The nonparty fault statute, MCL 600.2957(2), provides that

after the initial defendants identified CCA as a nonparty poten-

tially at fault, plaintiffs had 91 days to file and serve an amended

complaint naming CCA. A cause of action filed under this subsec-

tion is not barred by a period of limitations unless the cause of

action would have been barred by a period of limitations at the

time of the filing of the original action. Not all of plaintiffs’ claims

against CCA would have been time-barred when the original

complaint was filed.

5. A conflict exists because plaintiffs’ claims against CCA

would not be totally barred under MCL 600.2957(2), but would be

totally barred under the notice of intent statute, MCL

600.2912b(1), and the statute of limitations, MCL 600.5805(6).

The nonparty fault statute and the notice of intent statute are in

pari materia and conflict, therefore, the more specific statute must

control. The notice of intent statute is the more specific statute in

this case. Plaintiffs’ claim against CCA is barred by the statute of

limitations because plaintiffs failed to comply with the notice of

intent statute and did not commence an action against CCA.

6. Where claims against a professional corporation are predi-

cated on its vicarious liability for a licensed health care provider

rendering medical services, such as plaintiffs’ claims against CCA,

a notice of intent must be provided to the professional corporation.

7. MCL 600.2301, which allows for the amendment and disre-

gard of “any error or defect,” where the substantial rights of the

parties are not affected and the cure is in furtherance of justice,

does not apply here. The failure to give CCA any notice in the

original notice of intent was not a mere defect in the notice subject

to cure. CCA’s substantial rights would be affected and any such

cure would not be in the furtherance of justice. The order denying

summary disposition must be reversed and the case must be

remanded to the trial court for the entry of an order of summary

disposition in favor of CCA.

Reversed and remanded.

1. L

IMITATION OF

CTIONS —

EDICAL

ALPRACTICE —

OTICE OF

NTENT TO

The two-year limitations period applicable to medical malpractice

actions is tolled, for a maximum of 182 days, when the plaintiff

provides a valid notice of intent to bring the action before the

period of limitations expires; the plaintiff must then wait for the

duration of the notice of intent period before a complaint may be

filed; a plaintiff has not commenced a medical malpractice action

where the plaintiff files the complaint before the notice of intent

period has expired (MCL 600.2912b[1], 600.5805[6], 600.5856).

340 287 M

ICH

339 [Mar

2. L

IMITATION OF

CTIONS —

EDICAL

ALPRACTICE —

OTICE OF

NTENT TO

—

OTICE OF

ONPARTY

AULT

The nonparty fault statute, MCL 600.2957, and the notice of intent

statute, MCL 600.2912b(1), relate to the same subject matter and

are in pari materia for purposes of a medical malpractice action

where there is a notice of nonparty fault given and a failure to wait

the entire notice of intent waiting period before filing an amended

complaint naming that party; the provisions of the notice of intent

statute, which apply only to medical malpractice actions, control

the determination whether the action is barred by the applicable

statute of limitations (MCL 600.2912b[1], 600.5805[6], MCL

600.5856).

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

lich, Rosen & Bartnick, PC (by Sheldon D. Erlich), for

plaintiffs.

Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by

Linda M. Garbarino and David R. Nauts), for Cardio-

vascular Clinical Associates, P.C.

Before: W

ILDER

,P.J., and M

ETER

and F

ORT

OOD

,JJ.

URIAM

. In this case alleging medical malprac-

tice, defendant Cardiovascular Clinical Associates, P.C.

(CCA), appeals by leave granted the circuit court’s order

denying its motion for summary disposition. We re-

verse.

The relevant facts are not disputed. Plaintiff

has

colon cancer, which was diagnosed in November 2005.

He had treated with defendant Dr. Mansoor G. Naini

before his cancer diagnosis. He claims that Dr. Naini

failed to refer him for a colonoscopy.

On April 25, 2006, plaintiffs’ counsel sent a notice of

intent to bring their action to Dr. Naini and defendant

Beverly Driver, plaintiff Willie Driver’s wife, joins him as a plaintiff,

claiming loss of consortium, a derivative claim. “Plaintiff” shall refer to

Willie Driver.

2010] D

RIVER V

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341

Michigan Cardiology Associates, P.C. (MCA). On Octo-

ber 23, 2006, plaintiffs filed a complaint against Dr.

Naini and MCA. On January 19, 2007, Dr. Naini and

MCA filed a notice of nonparty fault, naming CCA.

As a result of the notice of nonparty fault, plaintiffs

sent an amended notice of intent to CCA on February 1,

2007. Approximately 39 days later, on March 12, 2007,

plaintiffs filed a first amended complaint, including

CCA as a defendant.

CCA moved for summary disposition, under MCR

2.116(C)(7), (8), and (10). CCA argued that plaintiffs

had failed to comply with the medical malpractice

procedural statutes and that plaintiffs’ suit was time-

barred.

In response, plaintiffs acknowledged that CCA

should have had 182 days of notice, but stated that the

period of limitations would have expired had they

waited that long. Plaintiffs argued that under subsec-

tion (2) of the nonparty fault statute, MCL 600.2957(2),

they have 91 days to add a potential defendant refer-

enced in a notice of nonparty fault. Plaintiffs also noted

that no new theories of liability were being alleged, and

the only theory of liability was against Dr. Naini as the

agent of his corporations. CCA was alleged to be vicari-

ously liable.

CCA replied, noting that plaintiff’s medical records

reflected that Dr. Naini was associated with CCA. So,

plaintiff was on notice of CCA.

At the hearing, plaintiffs denied that the period of

limitations expired, arguing that the notice of intent

sent to CCA, within the limitations period, tolled the

statute. Plaintiffs also argued that, under subsection (2)

of the nonparty fault statute, MCL 600.2957(2), the

amended complaint was timely. Plaintiffs argued that,

under that statute, as long as they added the nonparty

342 287 M

ICH

339 [Mar

at fault within 91 days of the notice of nonparty fault,

they are within the protection of that statute. The

circuit court agreed with plaintiffs and denied the

motion for summary disposition.

CCA applied for leave to appeal. This Court granted

leave, limited to the issues stated in the application.

Driver v Naini, unpublished order of the Court of

Appeals, entered March 21, 2008 (Docket No. 280844).

CCA first argues that plaintiffs prematurely filed

suit, before the expiration of the presuit notice of intent

period, and that, accordingly, the circuit court erred by

denying its motion for summary disposition.

This Court reviews summary disposition rulings de

novo. Thorn v Mercy Mem Hosp Corp, 281 Mich App

644, 647; 761 NW2d 414 (2008). Issues of statutory

construction are questions of law, reviewed de novo.

Washington v Sinai Hosp of Greater Detroit, 478 Mich

412, 417; 733 NW2d 755 (2007). Similarly, this Court

reviews de novo the legal question whether a statute of

limitations bars an action. Ins Comm’r v Aageson Thibo

Agency, 226 Mich App 336, 340-341; 573 NW2d 637

(1997).

MCR 2.116(C)(7) permits summary disposition

where the claim is barred because the applicable period

of limitations expired before commencement of the

action. In reviewing a motion under subrule (C)(7), a

court accepts as true the plaintiff’s well-pleaded allega-

tions of fact, construing them in the plaintiff’s favor.

Hanley v Mazda Motor Corp, 239 Mich App 596, 600;

609 NW2d 203 (2000). The Court must consider affida-

vits, pleadings, depositions, admissions, and any other

documentary evidence submitted by the parties, to

determine whether a genuine issue of material fact

exists. Id. But these materials are considered only to the

2010] D

RIVER V

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343

extent that they are admissible in evidence. In re

Miltenberger Estate, 275 Mich App 47, 51; 737 NW 2d

513 (2007).

A motion for summary disposition under subrule

(C)(8) tests the legal sufficiency of the pleadings.

Johnson-McIntosh v Detroit, 266 Mich App 318, 322;

701 NW2d 179 (2005). The pleadings are considered

alone, without consideration of evidence. MCR

2.116(G)(5). Where the parties rely on documentary

evidence, appellate courts proceed under the standards

of review applicable to a motion made under MCR

2.116(C)(10). The Healing Place at North Oakland Med

Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d

174 (2007).

A motion made under MCR 2.116(C)(10) tests the

factual support for a claim, and should be granted when

there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. The

Healing Place at North Oakland Med Ctr, 277 Mich App

at 56. When the burden of proof at trial would rest on the

nonmoving party, the nonmovant may not rest upon mere

allegations or denials in the pleadings, but must, by

documentary evidence, set forth specific facts showing

that there is a genuine issue for trial. Id. But such

evidence is only considered to the extent that it is admis-

sible. MCR 2.116(G)(6). A genuine issue of material fact

exists when the record, drawing all reasonable inferences

in favor of the nonmoving party, leaves open an issue upon

which reasonable minds could differ. The Healing Place at

North Oakland Med Ctr, 277 Mich App at 56.

Where the timeliness of a tort action is at issue, we

analyze when the claim accrued, because the due date for

commencing the action hinges on accrual. MCL

600.5805(1) (“[a] person shall not bring or maintain an

action... unless, after the claim first accrued ... the

344 287 M

ICH

339 [Mar

action is commenced within the periods of time prescribed

by this section”) (emphasis added). A medical malpractice

claim accrues at the time of the acts or omissions that are

the basis for the claim. MCL 600.5838a(1).

Because plaintiff’s colon cancer was diagnosed in

November 2005, that is the latest time at which the

claim accrued. MCL 600.5838a(1). Since the claim ac-

crued, at the latest, in November 2005, plaintiffs had, at

the latest, until November 2007 to commence an action

against CCA. MCL 600.5805(6) (the period of limita-

tions for malpractice is two years). The first amended

complaint naming CCA was filed, and thus an action

against CCA ostensibly

commenced, in March 2007.

A medical malpractice claimant must give, to proposed

defendants, notice of the intent to sue, and this must be

done at least 182 days before commencing an action. MCL

600.2912b(1).

A notice of intent must also be separately

provided to a professional corporation, if the plaintiff

wants to be able to sue the professional corporation for

vicarious liability for medical malpractice. Potter v

McLeary, 484 Mich 397, 402-403; 774 NW2d 1 (2009).

If the claimant gives this notice of intent, the claim-

ant tolls the two-year limitations period of MCL

Later in this opinion, we will see that a medical malpractice action is

not legally commenced unless the claimants complied with the notice of

intent period. Burton v Reed City Hosp Corp, 471 Mich 745, 753-754; 691

NW2d 424 (2005). Here, as to CCA, it is undisputed that plaintiffs did not

comply with the notice of intent waiting period (although plaintiffs

maintain that such compliance was not required; see the discussion later

in this opinion).

If the claimant does not receive the written response required by MCL

600.2912b(7) from the defendant within 154 days after the defendant

received the notice, the claimant may commence a medical malpractice

action upon the expiration of the 154-day period. MCL 600.2912b(8).

Here, the shortening of the 182-day period to 154 days is irrelevant,

because plaintiffs only waited approximately 39 days, after giving their

amended notice to CCA, to file their first amended complaint.

2010] D

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345

600.5805(6), as against the persons who are sent the

notice. MCL 600.5856(c). MCL 600.5856 states:

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 other-

wise 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. [Emphasis added.]

Thus, the two-year limitations period is tolled, for a

maximum of 182 days, if the plaintiff provides, before

the period of limitations expires, a valid notice of intent.

MCL 600.5856(c); Waltz v Wyse, 469 Mich 642, 646; 677

NW2d 813 (2004); Farley v Advanced Cardiovascular

Health Specialists, PC, 266 Mich App 566, 573; 703

NW2d 115 (2005) (notice of intent cannot toll the

running of the period of limitations, if the limitations

period has already expired before the notice was given).

A claimant must then wait for the duration of the notice

of intent period, before the claimant may file a com-

plaint. Burton v Reed City Hosp Corp, 471 Mich 745,

753-754; 691 NW2d 424 (2005). As the emphasized

language makes clear, the notice of intent tolling has a

maximum number of days equal to the number of days

remaining in the notice period. MCL 600.5856(c).

Next, also at play in determining the timeliness of a

medical malpractice action are, obviously, the limita-

tions periods. MCL 600.5838a(2) provides the overall

346 287 M

ICH

339 [Mar

map of the limitations periods applicable to medical

malpractice actions. It states, in relevant 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 section 5805 or sections 5851 to 5856, or

within 6 months after the plaintiff discovers or should have

discovered the existence of the claim, whichever is later....

A medical malpractice action that is not commenced within

the time prescribed by this subsection is barred. [MCL

600.5838a(2) (emphasis added).]

There is no issue raised by the parties regarding

discovery of the alleged malpractice. Therefore, accord-

ing to the emphasized language, MCL 600.5838a(2)

points the analysis to MCL 600.5805, which provides a

two-year limitations period for medical malpractice

actions. It states, in relevant part:

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

recover damages for injuries to persons or property unless,

after the claim first accrued...theaction is commenced

within the periods of time prescribed by this section.

***

(6) [T]he period of limitations is 2 years for an action

charging malpractice. [MCL 600.5805.]

Thus, whether a claimant has complied with the statute

of limitations depends on when the claimant com-

menced an action. Therefore, we turn to what actions

constitute commencement of a medical malpractice

action.

If a plaintiff files a complaint before the notice period

has expired, the plaintiff has not commenced a medical

malpractice action. Burton, 471 Mich at 754. The Court

in Burton made this clear:

2010] D

RIVER V

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347

Each statute sets forth a prerequisite condition to the

commencement of a medical malpractice lawsuit. The filing

of a complaint before the expiration of the statutorily

mandated notice period is no more effective to commence a

lawsuit than the filing of a complaint without the required

affidavit of merit. In each instance, the failure to comply

with the statutory requirement renders the complaint

insufficient to commence the action. [Id.]

Here, plaintiffs provided their amended notice of

intent, naming CCA, on February 1, 2007. Approxi-

mately 39 days later, plaintiffs filed their first amended

complaint, naming CCA. Because plaintiffs filed their

first amended complaint before the notice period ex-

pired, they did not commence a medical malpractice

action as against CCA. Burton, 471 Mich at 753-754

(filing a premature complaint does not toll the statute

of limitations). Because plaintiffs did not properly com-

mence an action against CCA, the period of limitations

continued to run as against CCA (was not tolled by the

filing of the premature complaint

), id.,

and plaintiffs’

Even if the amended notice of intent tolled the limitations period, it

only did so for a limited number of days. MCL 600.5856(c). Because

plaintiffs never effectively commenced an action against CCA, Burton,

471 Mich at 753-754, the clock began to run again after § 5856(c) tolling

expired.

In Mayberry v Gen Orthopedics, PC, 474 Mich 1, 3; 704 NW2d 69

(2005), the Court faced a situation in which a first notice of intent did not

need to toll the limitations period, because there were more than 182

days remaining in the limitations period, and then the plaintiff filed a

second notice of intent, with fewer than 182 days remaining in the

limitations period, thereby needing the tolling. The Court held that

because the first notice of intent did not result in any tolling, the second

notice of intent did result in tolling under MCL 600.5856(d) (which was

amended to become subsection [c]). In the case at bar, plaintiffs only

provided one notice of intent to CCA. In addition, that notice of intent

could only toll for a limited number of days, see MCL 600.5856(c), and

since plaintiffs’ amended complaint, naming CCA, did not commence an

action, because it was premature, the tolling under MCL 600.5856(c), for

a limited number of days, ended long ago. MCL 600.5856(c).

348 287 M

ICH

339 [Mar

claims against CCA are now time-barred, MCL

600.5805(6). This is the end of the case, unless, as

plaintiffs argue, their claim against CCA is timely under

another statute. They cite the notice of nonparty fault

statute, MCL 600.2957.

In relevant part, the nonparty fault statute provides,

in effect, that after the initial defendants identified

CCA as a nonparty potentially at fault, plaintiffs had 91

days to file and serve an amended complaint naming

CCA. MCL 600.2957(2). That subsection provides:

Upon motion of a party within 91 days after identifica-

tion of a nonparty, the court shall grant leave to the moving

party to file and serve an amended pleading alleging 1 or

more causes of action against that nonparty. A cause of

action added under this subsection is not barred by a period

of limitation unless the cause of action would have been

barred by a period of limitation at the time of the filing of

the original action. [MCL 600.2957(2).]

Whether plaintiffs can rely on this statute, to render

their claim against CCA timely, depends on how this

statute is interpreted.

Statutory construction discerns and gives effect to

the Legislature’s intent. Potter, 484 Mich at 410. In

determining that intent, the court first looks to the

language of the statute. Id. The interpretation of the

language must accord with the legislative intent. Bush

v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009).

As far as possible, the court gives effect to every phrase,

clause, and word in the statute. Id. “The statutory

language must be read and understood in its grammati-

cal context, unless it is clear that something different

was intended.” Id. (quotation marks and citations omit-

ted). Courts read a statute as a whole, and individual

words and phrases, while important, are read in the

context of the entire legislative scheme. Id.

2010] D

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349

Applying these rules, we first note that a cause of

action filed in accordance with this subsection “is not

barred by a period of limitation....”MCL600.2957(2).

The only exception is the “unless clause,” relied on by

CCA here. Under the “unless clause,” that part of

plaintiffs’ claims that would have been time-barred, at

the filing of the original complaint, on October 2006, is

not timely under subsection (2) of the nonparty fault

statute. MCL 600.2957(2). Because plaintiffs claim that

malpractice occurred up to and including November

2005 (which is within two years of October 2006), not

all portions of plaintiffs’ claims against CCA would have

been time-barred when the original complaint was filed.

Only those portions of the claims based on acts or

omission occurring before October 23, 2004, would have

been time-barred, as against CCA, at that time. MCL

600.5805(6) (2-year limitations period); MCL

600.5838a(1) (a medical malpractice claim accrues at

the time of the acts or omissions that are the basis for

the claim). Thus, the “unless exception” in subsection

(2) of the nonparty fault statute is not a total bar to

plaintiffs’ claims against CCA.

Accordingly, given all the above analysis, we must

turn to the apparent conflict between, on the one hand,

the nonparty fault statute (under which plaintiffs’

claims against CCA are not totally barred), and, on the

other hand, the notice of intent statute and the statute

of limitations (which, as discussed earlier in this opin-

ion, as interpreted in Burton, would result in plaintiffs’

claims against CCA being untimely in toto). Therefore,

we turn to the law applicable when statutes touching

the same area appear to conflict. In re Kostin Estate,

278 Mich App 47, 57; 748 NW2d 583 (2008).

Apparently conflicting statutes should be construed,

if possible, to give each full force and effect. Mich Good

350 287 M

ICH

339 [Mar

Roads Federation v State Bd of Canvassers, 333 Mich

352, 361; 53 NW2d 481 (1952); Beattie v Mickalich, 284

Mich App 564, 570; 773 NW2d 748 (2009). The object of

the in pari materia rule is to effectuate legislative

purposes when statutes are harmonious. Walters v

Leech, 279 Mich App 707, 710; 761 NW2d 143 (2008). If

two statutes lend themselves to a harmonious construc-

tion, that construction controls. In re Project Cost &

Special Assessment Roll for Chappel Dam, 282 Mich

App 142, 148; 762 NW2d 192 (2009). Statutes are in

pari materia when they relate to the same subject

matter and share a common purpose. In re Kostin

Estate, 278 Mich App at 57, citing Donkers v Kovach,

277 Mich App 366, 371; 745 NW2d 154 (2007). In other

words, statutes that are in pari materia must be read

together, as a whole, to fully reveal the Legislature’s

intent. Beattie, 284 Mich App at 570. However, to the

extent the two statutes at issue are in actual conflict,

and are in pari materia, the more specific statute

controls. In re Kostin Estate, 278 Mich App at 57, citing

People v Buehler, 477 Mich 18, 26; 727 NW2d 127

(2007).

Accordingly, we first consider whether the nonparty

fault statute and the notice of intent statute (together

with the statute of limitations) can be read harmoni-

ously. We are constrained to hold that they are in

unavoidable conflict. Hughes v Almena Twp, 284 Mich

App 50, 66; 771 NW2d 453 (2009) (noting that statutes

that are in pari materia must be read together as one

law and should be reconciled “if possible”). As discussed

earlier in this opinion, the nonparty fault statute un-

avoidably results in only parts of plaintiffs’ claim

against CCA being untimely. On the other hand, as

explained earlier, the notice of intent statute, as bind-

ingly interpreted in Burton, 471 Mich at 753-754,

together with the statute of limitations, would result in

2010] D

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351

all of plaintiffs’ claim against CCA being barred. We can

see no interpretation of these statutes that can void the

conflicting result, while still being faithful to Burton,

471 Mich at 753-754.

We also hold that, the nonparty fault statute, on one

hand, and, on the other hand, the notice of intent

statute (in conjunction with the statute of limitations),

relate to the same subject matter, namely, the situation

at bar, where there is, in a medical malpractice action, a

notice of nonparty fault as well as a failure to wait the

entire notice of intent waiting period. MCL 600.2912b;

MCL 600.2957. Also, the statutes share a common

purpose, namely, to provide rules and limitations for

when actions may be brought against persons alleged to

be liable for medical malpractice. MCL 600.2912b; MCL

600.5805(6); MCL 600.2957(2). Accordingly, these stat-

utes are in pari materia. Compare In re Kostin Estate,

278 Mich App at 57 (holding in pari materia a statute

dealing with Totten

trusts and a statute dealing with

express trusts).

Because the statutes conflict, and are in pari materia,

we must determine which is more specific. In re Kostin

Estate, 278 Mich App at 57. The notice of intent statute

applies only to medical malpractice actions. MCL

600.2912b(1). The nonparty fault statute, by contrast,

applies to a broader category of actions, namely any

“action based on tort or another legal theory seeking

damages for personal injury, property damage, or

wrongful death,” in which a defendant gives notice of a

nonparty at fault. MCL 600.2957(1). Therefore, the

notice of intent statute controls. In re Kostin Estate, 278

Mich App at 57. Because plaintiffs failed to comply with

the notice of intent statute and did not commence an

In re Totten, 179 NY 112; 71 NE 748 (1904); see also In re Kostin

Estate, 278 Mich App at 55-56.

352 287 M

ICH

339 [Mar

action against CCA, their claim against CCA is barred

by the statute of limitations. Burton, 471 Mich at

753-754.

Plaintiffs argue that Burton is no longer good law,

citing Costa v Community Emergency Med Servs, Inc,

475 Mich 403; 716 NW2d 236 (2006). This argument

lacks merit. Costa did not overrule Burton.Onthe

contrary, Costa cited, and relied upon, Burton. Costa,

475 Mich at 409. Therefore, Burton is still good law. Id.

Plaintiffs also argue that the notice of intent statute,

and its mandatory waiting period, do not apply to CCA,

because it is a professional corporation. Our Supreme

Court recently rejected this position, holding that,

where claims against a professional corporation are

predicated on its vicarious liability for a licensed health

care provider rendering professional services, a notice

of intent must be provided to the professional corpora-

tion. Potter, 484 Mich at 402-403.

Potter does not in any way contradict the result we

reach today. On the contrary, it supports it. Potter’s first

holding is that “when claims alleged against a PC are

predicated on its vicarious liability for a licensed health

care provider rendering professional services, an NOI

[notice of intent] must be provided” to the professional

corporation. Id. at 402. Potter’s second holding is that

the notice of intent statute does not require a claimant

to set forth the legal and employment relationship

between the parties to be sued. Id. at 420. Potter’s third

holding is that a claimant is not required to set forth the

claimant’s legal theory of vicarious liability in the

notice of intent sent to a professional corporation, even

when vicarious liability is the only claim asserted

against the professional corporation. Id. at 422. None of

these Potter holdings contradicts our holdings today,

because the Potter holdings do not relate to whether

2010] D

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353

claims are barred by reason of a statute of limitations

where a claimant fails to wait the required notice

period. Id.

Bush also does not contradict our result today. Bush

dealt with a situation in which there were defects in a

notice of intent, not a situation in which a party was

completely left out of a notice of intent (received no

notice whatsoever). Bush, 484 Mich at 160-161. There-

fore, Bush is distinguishable. The first (and only rel-

evant) issue in Bush was whether defects in a notice of

intent would preclude tolling of the statute of limita-

tions under MCL 600.5856. The Court held that defects

in the notice of intent did not preclude notice tolling,

because defects in the notice of intent can be addressed

under MCL 600.2301,

which allows for amendment

and disregard of “any error or defect,” where the

substantial rights of the parties are not affected, and

the cure is in furtherance of justice. Bush, 484 Mich at

161. We hold that plaintiffs’ failure to give any notice

whatsoever to CCA in the original notice of intent

cannot be considered a mere defect in the notice, subject

to cure, and also that the substantial rights of CCA

would be affected (indeed, CCA, though a corporate

person, has a due process right to notice

). We also hold

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has

power to amend any process, pleading or proceeding in such action

or proceeding, either in form or substance, for the furtherance of

justice, on such terms as are just, at any time before judgment

rendered therein. The court at every stage of the action or

proceeding shall disregard any error or defect in the proceedings

which do not affect the substantial rights of the parties.

Greater Slidell Auto Auction, Inc v American Bank & Trust Co of

Baton Rouge, La, 32 F3d 939, 942 (CA 5, 1994) (holding that a

corporation had due process right to notice by mail of the Federal Deposit

Insurance Corporation’s appointment as receiver).

354 287 M

ICH

339 [Mar

that such a drastic “cure” (adding a new party) would

not be in the furtherance of justice (if plaintiffs could

obtain tolling for a claim against CCA, though no notice

whatsoever was provided to CCA in the original notice

of intent). See id. Therefore, Bush and MCL 600.2301

do not allow plaintiffs to leave CCA out of the original

notice of intent, toll the statute of limitations as against

CCA, and then “cure” the “error or defect” by giving

CCA an amended notice.

Plaintiffs also argue that the correct action, in re-

sponse to CCA’s motion, would be dismissal without

prejudice. This argument was not made in the circuit

court. Therefore, we decline to consider it. Kuznar v

Raksha Corp, 481 Mich 169, 182 n 35; 750 NW2d 121

(2008); Ligon v Detroit, 276 Mich App 120, 129; 739

NW2d 900 (2007).

Because we hold that plaintiffs’ claims against CCA

are time-barred, CCA’s remaining arguments are moot,

and this Court is not obliged to decide moot questions,

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

221; 761 NW2d 293 (2008), even when they are pre-

served, Ewing v Bolden, 194 Mich App 95, 104; 486

NW2d 96 (1992).

Reversed and remanded for entry of summary dispo-

sition in CCA’s favor. We do not retain jurisdiction.

CCA, being the prevailing party, may tax costs pursuant

to MCR 7.219.

2010] D

RIVER V

AINI

355

PEOPLE v LEWIS (ON REMAND)

Docket No. 274508. Submitted October 15, 2009, at Lansing. Decided

January 12, 2010. Approved for publication March 4, 2010, at 9:00

a.m.

Reginald L. Lewis was convicted by a jury in the Wayne Circuit

Court, David J. Allen, J., of first-degree premeditated murder.

Defendant appealed, and the Court of Appeals, M

ETER

,P.J., and

AWYER

and W

ILDER

, JJ., affirmed in an unpublished opinion per

curiam, issued April 15, 2008 (Docket No. 274508). The Supreme

Court, in lieu of granting leave to appeal, vacated in part the

opinion of the Court of Appeals and remanded the case to the

Court of Appeals for reconsideration of defendant’s Confrontation

Clause, sufficiency of the evidence, and ineffective assistance of

counsel issues in light of Melendez-Diaz v Massachusetts, 557 US

___; 129 S Ct 2527; 174 L Ed 2d 314 (2009). 485 Mich 878 (2009).

On remand, the Court of Appeals held:

1. Defendant’s constitutional right to confront the witnesses

against him was not violated when the trial court admitted into

evidence an autopsy report prepared by two nontestifying medical

examiners through the testimony of a third medical examiner from

the same laboratory.

2. Because the autopsy report was not prepared primarily for

use in a later criminal prosecution, but was prepared pursuant to

a duty imposed by statute, and defendant cross-examined the

testifying medical examiner regarding the examiner’s independent

opinions that were based on the autopsy report, the report is not

testimonial evidence and defendant was not denied his right to

confront the two nontestifying medical examiners. The Supreme

Court’s determination in Melendez-Diaz that the disputed evi-

dence was testimonial was based on characteristics that are not

present with regard to the autopsy report in this case.

3. The admission of the report through the testimony of the

third medical examiner was not outcome determinative because

the report did not aid in establishing the identity of the perpetra-

tor, which was the central issue in the case.

356 287 M

ICH

356 [Mar

4. Defendant’s trial counsel was not ineffective for failing to

object to the admission of the autopsy report on Sixth Amendment

grounds. Counsel’s failure to object did not fall below an objective

standard of reasonableness and defendant cannot demonstrate

that, but for the attorney’s alleged error, the outcome of the trial

would have been different. There was sufficient evidence to

support the conviction absent the report.

5. The evidence was sufficient for a rational trier of fact to find

that defendant was the person who killed the victim. The trial

court did not err by denying defendant’s motion for a directed

verdict that alleged that there was insufficient evidence identify-

ing defendant as the perpetrator of the crime.

6. The autopsy report detailing the stab wounds sustained by

the victim provided evidence of intent and premeditation. The

prosecution, even without the report, presented sufficient evi-

dence, including evidence regarding defendant’s acts after the

homicide, for a rational trier of fact to find intent and premedita-

tion. The trial court did not err by denying defendant’s motion for

a directed verdict that alleged that insufficient evidence of pre-

meditation was presented.

Affirmed.

1. C

ONSTITUTIONAL

AW —

ONFRONTATION

LAUSE —

ESTIMONIAL

TATEMENTS

Testimonial hearsay is inadmissible against a criminal defendant

unless the declarant is unavailable at trial and there was a prior

opportunity for cross-examination of the declarant; statements are

testimonial where the primary purpose of the statements or the

questioning that elicits them is to establish or prove past events

potentially relevant to later criminal prosecution.

2. C

ONSTITUTIONAL

AW —

ONFRONTATION

LAUSE —

ESTIMONIAL

TATEMENTS

The class of testimonial statements covered by the Confrontation

Clause includes material such as affidavits, custodial examina-

tions, prior testimony that the defendant was unable to cross-

examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially; also included are

extrajudicial statements contained in formalized testimonial ma-

terials, such as affidavits, depositions, prior testimony, confes-

sions, and statements that were made under circumstances that

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial (US Const, Am

VI; Const 1963, art 1, § 20).

2010] P

EOPLE V

EWIS

EMAND

) 357

3. C

RIMINAL

AW —

OMICIDE —

LEMENTS —

DENTITY —

REMEDITATION —

ELIBERATION

Identity is an element of every criminal offense; the elements of the

crime of premeditated murder are an intentional killing of a

human being with premeditation and deliberation; premeditation

and deliberation may be inferred from the circumstances and

minimal circumstantial evidence is sufficient to prove an actor’s

state of mind (MCL 750.316).

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

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, Timothy A. Baughman, Chief of Research, Train-

ing, and Appeals, and Jeffrey Caminsky, Principal At-

torney, Appeals, for the people.

Gerald M. Lorence for defendant.

ON REMAND

Before: M

ETER

,P.J., and S

AWYER

and W

ILDER

,JJ.

URIAM

.InPeople v Lewis, unpublished opinion

per curiam of the Court of Appeals, issued April 15,

2008 (Docket No. 274508), we affirmed defendant’s

conviction of first-degree premeditated murder, MCL

750.316. Following the United States Supreme Court’s

decision in Melendez-Diaz v Massachusetts, 557 US ___;

129 S Ct 2527; 174 L Ed 2d 314 (2009), and in lieu of

granting leave to appeal, the Michigan Supreme Court

vacated our opinion in part and remanded “for recon-

sideration of...defendant’s Confrontation Clause, suf-

ficiency of the evidence, and ineffective assistance is-

sues in light of Melendez-Diaz.” People v Lewis, 485

Mich 878 (2009). We again affirm.

As we stated in our previous opinion:

Defendant’s conviction[] ar[o]se from the death of his

longtime girlfriend, Tomeka Cook. After a dispute with

358 287 M

ICH

356 [Mar

defendant over money, Cook was found dead with multiple

stab wounds. [Lewis, unpub op at 1.]

An autopsy was performed on Cook’s body and the trial

court admitted into evidence the autopsy report pre-

pared by two nontestifying medical examiners through

the testimony of a third medical examiner from the

same laboratory, Dr. Carl Schmidt. In his first claim on

remand, defendant argues that the admission of the

autopsy report violated his constitutional right to con-

front witnesses against him. We disagree. This issue is

unpreserved because defendant failed to object to the

admission of the autopsy report and Dr. Schmidt’s

testimony on Sixth Amendment grounds. Therefore, we

review defendant’s claim for plain error that affected

his substantial rights. People v Carines, 460 Mich 750,

764; 597 NW2d 130 (1999); People v Bauder, 269 Mich

App 174, 180; 712 NW2d 506 (2005).

We will reverse only if we determine that, although

defendant was actually innocent, the plain error caused

him to be convicted, or if the error “seriously affected the

fairness, integrity, or public reputation of judicial proceed-

ings,” regardless of his innocence. [People v Thomas, 260

Mich App 450, 454; 678 NW2d 631 (2004) (citation omit-

ted).]

The Confrontation Clause provides: “[i]n all criminal

prosecutions, the accused shall enjoy the right...tobe

confronted with the witnesses against him....” US

Const, Am VI. Our state constitution also guarantees

the same right. Const 1963, art 1, § 20. To preserve this

right, testimonial hearsay is inadmissible against a

criminal defendant unless the declarant was unavail-

able at trial and there was a prior opportunity for

cross-examination of the declarant. Crawford v Wash-

ington, 541 US 36, 50-51, 53-54; 124 S Ct 1354; 158 L

Ed 2d 177 (2004); People v Shepherd, 472 Mich 343, 347;

2010] P

EOPLE V

EWIS

EMAND

) 359

697 NW2d 144 (2005).

Statements are testimonial

where the “primary purpose” of the statements or the

questioning that elicits them “is to establish or prove

past events potentially relevant to later criminal pros-

ecution.” Davis v Washington, 547 US 813, 822; 126 S

Ct 2266; 165 L Ed 2d 224 (2006).

In our previous opinion, we thoroughly discussed this

Court’s applications of Crawford in People v Jambor

(On Remand), 273 Mich App 477; 729 NW2d 569

(2007), and People v Lonsby, 268 Mich App 375; 707

NW2d 610 (2005). On the basis of these decisions, we

concluded that the autopsy report was nontestimonial

because it “was ‘not prepared in anticipation of litiga-

tion against defendant,’ but pursuant to a ‘duty im-

posed by law,’ MRE 803(8).” Lewis, unpub op at 4

(citation omitted), citing Jambor. We also noted that a

medical examiner is required by statute to investigate

the cause and manner of death of an individual under

certain circumstances, including death by violence,

MCL 52.202(1)(a), and thus further concluded that the

admission of the autopsy report through Dr. Schmidt’s

testimony did not violate defendant’s Sixth Amend-

ment rights under Crawford and Davis.

The Confrontation Clause does not restrict state law in the determi-

nation whether hearsay is admissible when it is nontestimonial, however.

Crawford, 541 US at 68.

We previously observed “the autopsy report contained enough ‘objec-

tive’ information and statements upon which Dr. Schmidt could form an

independent opinion about which he could be cross-examined.” Lewis,

unpub op at 5. We stated:

Dr. Schmidt testified that the autopsy report showed that

Tomeka had sustained several stab wounds, and six wounds on the

backs of her hands, which the report described as “defensive

wounds.” He testified that the one of the medical examiners who

performed the autopsy had concluded that the cause of death was

multiple stab wounds and the manner of death was homicide.

After reviewing the report and sketch upon which the nontestify-

360 287 M

ICH

356 [Mar

Our Supreme Court has instructed this Court to

reconsider defendant’s Confrontation Clause argument

in light of Melendez-Diaz. That case involved the use of

affidavits by forensic analysts to support the defen-

dant’s convictions of distributing and trafficking in

cocaine. 557 US at ___; 129 S Ct at 2530-2531; 174 L Ed

2d at 319-321. At trial, over the defendant’s objection,

the court admitted three notarized “certificates of

analysis” from nontestifying laboratory analysts who,

at the request of the police, tested the substance in bags

seized by the police. Id. The certificates stated that

chemical testing identified the substance in the bags as

cocaine. Id. Massachusetts’ law permitted the certifi-

cates to serve as ‘ “prima facie evidence of the compo-

sition, quality, and the net weight” ’ of the narcotic

analyzed, and the trial court held that the authors of

the certificates were not subject to confrontation. 557

US at ___; 129 S Ct at 2532; 174 L Ed 2d at 321.

On appeal, the defendant in Melendez-Diaz, 557 US at

___; 129 S Ct at 2531; 174 L Ed 2d at 320, challenged the

admission of the certificates and claimed that the analysts

were required to testify in person. The United States

Supreme Court reversed the defendant’s convictions,

holding that the admission of the documents violated the

Confrontation Clause. The Supreme Court’s decision re-

affirmed the principles set forth in Crawford. Justice

Scalia, writing for the Court, reiterated Crawford’s de-

scription of “the class of testimonial statements covered

by the Confrontation Clause,” that is,

ing medical examiner based her opinion, Dr. Schmidt agreed with

her conclusions about cause and manner of death, and with her

description of the wounds on the backs of the hands as defensive.

Dr. Schmidt testified that, in his opinion, Tomeka could have been

killed on February 2, 2003, or February 3, 2003, but not on

February 4, 2003, because that is when the body was found and

rigor mortis was waning. [Id.]

2010] P

EOPLE V

EWIS

EMAND

) 361

“material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine,

or similar pretrial statements that declarants would rea-

sonably expect to be used prosecutorially; extrajudicial

statements...contained in formalized testimonial materi-

als, such as affidavits, depositions, prior testimony, or

confessions; statements that were made under circum-

stances which would lead an objective witness reasonably

to believe that the statement would be available for use at

a later trial.” [557 US at ___; 129 S Ct at 2531; 174 L Ed 2d

at 321, quoting Crawford, 541 US at 51-52 (quotation

marks and citations omitted.]

The Supreme Court concluded in Melendez-Diaz that

the “certificates of analysis” were affidavits, and that they

were statements offered against the defendant to prove a

contested fact. 557 US at ___; 129 S Ct at 2532; 174 L Ed

2d at 321. As such, the certificates were testimonial in

nature and subject to the Confrontation Clause. Id. The

fact that the “sole purpose” of the certificates was to serve

as prima facie evidence at trial further supported the

Court’s conclusion that they were testimonial. Id. The

Supreme Court summarized its conclusion:

In short, under our decision in Crawford the analysts’

affidavits were testimonial statements, and the analysts were

“witnesses” for purposes of the Sixth Amendment. Absent a

showing that the analysts were unavailable to testify at trial

and that petitioner had a prior opportunity to cross-examine

them, petitioner was entitled to “ ‘be confronted with’ ” the

analysts at trial. Crawford, supra, at 54, 124 S Ct 1354, 158 L

Ed 2d 177. [Id. (emphasis in original).]

Applying Melendez-Diaz to the instant case, we again

conclude that defendant has failed to establish plain

error in the admission of the report. The Supreme

Court’s determination that the forensic analysts’ cer-

tificates in Melendez-Diaz were testimonial was based

on characteristics that are not present here. Unlike the

certificates, which were prepared for the “sole purpose” of

362 287 M

ICH

356 [Mar

providing “prima facie evidence” against the defendant at

trial, Melendez-Diaz, 557 US at ___; 129 S Ct at 2532; 174

L Ed 2d at 321, the autopsy report was prepared pursuant

to a duty imposed by statute. Lewis, unpub op at 4-5;

MRE 803(8); MCL 52.202(1)(a). As we stated in our

previous opinion:

[W]hile it was conceivable that the autopsy report would

become part of [a] criminal prosecution, investigations by

medical examiners are required by Michigan statute under

certain circumstances regardless of whether criminal pros-

ecution is contemplated. [Lewis, unpub op at 4.]

Furthermore, unlike the way the certificates in

Melendez-Diaz were used, Dr. Schmidt formed indepen-

dent opinions based on objective information in the

autopsy report and his opinions were subject to cross-

examination. See Lewis, unpub op at 5; cf., Jambor, 273

Mich App at 488, and Lonsby, 268 Mich App at 392.

Because the autopsy report was not prepared primarily

for use in a later criminal prosecution and defendant

cross-examined Dr. Schmidt regarding his independent

opinions based on the autopsy report, the report is not

testimonial evidence and defendant was not denied the

right to be confronted by the two nontestifying medical

examiners who prepared it. Davis, 547 US at 822;

Lonsby, 268 Mich App at 392.

In addition, as we previously concluded, the admission

of the report through the testimony of Dr. Schmidt was

not outcome determinative: “There is no dispute that a

crime was committed, and the autopsy did not aid in

establishing the identity of the perpetrator, which was the

central issue in this case.” Lewis, unpub op at 6.

The Melendez-Diaz Court noted that “[t]he right to confrontation may,

of course, be waived, including by failure to object to the offending evidence;

and States may adopt procedural rules governing the exercise of such

objections.” Melendez-Diaz,557US___n3;129SCtat2534n3;174LEd

2d at 323 n 3.

2010] P

EOPLE V

EWIS

EMAND

) 363

In defendant’s second claim on remand, he argues

that his attorney was ineffective for failing to object to

the admission of the autopsy report on Sixth Amend-

ment grounds. We disagree. The determination whether

a defendant has been deprived of the effective assis-

tance of counsel presents a mixed question of fact and

constitutional law. People v Grant, 470 Mich 477, 484;

684 NW2d 686 (2004). The trial court must first find

the facts, and then decide whether those facts consti-

tute a violation of the defendant’s constitutional right

to counsel. Id. The trial court’s factual findings are

reviewed for clear error, while its constitutional deter-

minations are reviewed de novo. Id. at 484-485.

Effective assistance is strongly presumed. People v

Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). To

demonstrate ineffective assistance, a defendant must

show: (1) that the defendant’s attorney’s performance fell

below an objective standard of reasonableness, and (2)

that this performance so prejudiced the defendant that

the defendant was deprived of a fair trial. Grant, 470 Mich

at 485-486. Prejudice exists if a defendant shows a reason-

able probability that the outcome would have been differ-

ent but for the attorney’s errors. Id. at 486.

Because the admission of the autopsy report did not

violate defendant’s right of confrontation, his attor-

ney’s failure to object to the admission of the report did

not fall below an objective standard of reasonableness.

Moreover, defendant cannot demonstrate that, but for

the attorney’s alleged error, the outcome of the trial

would have been different. Id. at 485-486. As we note

later in this opinion, there was sufficient evidence to

support defendant’s first-degree murder conviction ab-

sent the report.

In defendant’s last two claims on remand, he first

argues that the prosecutor failed to present sufficient

364 287 M

ICH

356 [Mar

evidence identifying him as the perpetrator to support

his conviction, and he second challenges the trial

court’s denial of his motion for a directed verdict,

reiterating his argument that there was insufficient

evidence identifying him as the perpetrator and arguing

that the evidence of premeditation was “scarce and

circumstantial.” We disagree. “A claim of insufficient

evidence is reviewed de novo, in a light most favorable

to the prosecution, to determine whether the evidence

would justify a rational jury’s finding that the defen-

dant was guilty beyond a reasonable doubt.” People v

McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005).

Circumstantial evidence and reasonable inferences may

be satisfactory proof of the elements of a crime. People

vLee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).

A challenge to the trial court’s decision on a motion for

a directed verdict has the same standard of review as a

challenge to the sufficiency of the evidence. People v

Aldrich, 246 Mich App 101, 122-123; 631 NW2d 67

(2001).

“[I]dentity is an element of every offense.” People v

Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).

“The elements of premeditated murder are (1) an

intentional killing of a human being (2) with premedi-

tation and deliberation.” People v Gayheart, 285 Mich

App 202, 210; 776 NW2d 330 (2009). ‘ “[P]remeditation

and deliberation may be inferred from circumstances,” ’

and “[m]inimal circumstantial evidence is sufficient to

prove an actor’s state of mind.” People v Ortiz, 249 Mich

App 297, 301; 642 NW2d 417 (2002) (citation omitted).

Again, the autopsy report did not aid in establishing

the identity element of the crime. Lewis, unpub op at 5.

Accordingly, even if the autopsy report had constituted

testimonial evidence and defendant was denied his

Sixth Amendment rights, the admission of the report

2010] P

EOPLE V

EWIS

EMAND

) 365

would not have been outcome determinative to the

issue of identity. Consistent with our previous opinion,

we conclude that the evidence was sufficient for a

rational trier of fact to find that defendant was Cook’s

killer because his blood was recovered from the back

door of Cook’s home, where she was found dead with

defensive wounds. Lewis, unpub op at 10-11. For this

same reason, the trial court did not err by denying

defendant’s motion for a directed verdict based on his

identity argument.

Furthermore, as we stated in our previous opinion,

the autopsy report detailing the numerous stab wounds

that Cook sustained provided evidence of intent and

premeditation. Lewis, unpub op at 11-12. However,

even without the report, the prosecution presented

sufficient evidence for a rational trier of fact to find

intent and premeditation. Defendant and Cook had a

contentious relationship. The autopsy photographs

demonstrated that Cook sustained numerous stab

wounds. Dr. Schmidt independently opined that some of

Cook’s wounds were defensive, indicating a struggle,

which can be evidence of premeditation. See id. at 12,

citing People v Johnson, 460 Mich 720, 730, 733; 597

NW2d 73 (1999). A rational trier of fact could also find

premeditation from evidence of defendant’s acts after

the homicide. See id. at 11, citing People v Gonzalez, 178

Mich App 526, 533; 444 NW2d 228 (1989) (a defendant’s

conduct after the homicide may establish premedita-

tion). As we thoroughly discussed in our previous opin-

ion, it could be inferred that defendant attempted to

construct an alibi by spending time with friends, that he

acted secretively with telephone calls, and that, several

months after Cook’s death, he evaded conversation

about Cook. Because the prosecution presented suffi-

cient evidence for a rational trier of fact to find both

intent and premeditation, the trial court did not err by

366 287 M

ICH

356 [Mar

denying defendant’s motion for a directed verdict on the

basis of his premeditation argument.

Affirmed.

2010] P

EOPLE V

EWIS

EMAND

) 367

PEOPLE v WATERSTONE

Docket No. 294667. Submitted February 5, 2010, at Detroit. Decided

March 4, 2010, at 9:05 a.m.

Mary M. Waterstone was charged by the Attorney General in the

36th District Court with four counts of misconduct in office

involving defendant’s alleged conduct while she was a circuit court

judge in knowingly permitting witnesses to commit perjury during

the trial of Alexander Aceval and Ricardo Pena for narcotics

trafficking. Defendant moved, in part, to disqualify the Attorney

General’s Office, contending that the Attorney General had a

conflict of interest and could not bring the charges against her

because the Attorney General had represented defendant in a

federal lawsuit filed by Aceval in which Aceval alleged under 42

USC 1983 that his civil rights were violated as a result of the

admission of the perjured testimony. The district court denied the

motion to disqualify the Attorney General. Defendant appealed to

the Wayne Circuit Court, Daniel A. Hathaway, J., which affirmed

the order of the district court denying the motion to disqualify the

Attorney General’s Office. The Court of Appeals, Z

AHRA

,P.J., and

ILDER

and K. F. K

ELLY

, JJ., denied defendant’s delayed application

for leave to appeal in an unpublished order, entered December 17,

2009 (Docket No. 294667). The Supreme Court, in lieu of granting

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

consideration as on leave granted, limited to the issues whether

the Attorney General’s prosecution of defendant is consistent with

the requirements of MRPC 1.7, 1.9, and 1.10 and with Attorney

General v Pub Serv Comm, 243 Mich App 487 (2000). 485 Mich

1016 (2010).

The Court of Appeals held:

1. Under the particular facts of this case, the Attorney General

should be disqualified for violating the MRPC when, without

obtaining defendant’s consent, the Criminal Division of the Attor-

ney General’s Office prosecuted defendant regarding perjury at

Aceval’s trial after the Public Employment, Elections, and Tort

(PEET) Division of the Attorney General’s Office defended defen-

dant from Aceval’s federal civil claims arising from Aceval’s trial.

2. The assistant attorney general from the PEET Division

learned confidential information from defendant in the course of

368 287 M

ICH

368 [Mar

representing her in the federal case. Defendant is not a current client

of the Attorney General, because representation of defendant by that

assistant attorney general ceased when the assistant attorney general

notified defendant that the federal action had been dismissed. The

present action is substantially related to the federal action because

both cases arose from the same alleged perjury at Aceval’s criminal

trial. The Attorney General’s instant criminal prosecution is materi-

ally adverse to the defense offered by the Attorney General on

defendant’s behalf in the federal civil case.

3. The Attorney General’s Office is a law firm under the

extraordinary circumstances of this case and for purposes of this

case only.

4. Given the PEET Division’s routine role in defending judges

in federal §1983 civil claims, it is unreasonable for the Attorney

General to have failed to carry out a conflict check before the

Criminal Division undertook its investigation. Knowledge of the

potential federal case can be inferred from the circumstances and,

therefore, the Attorney General should have obtained the consent

of his former client, defendant, before the Criminal Division

undertook its investigation.

5. The Attorney General has an affirmative duty to perform a

conflict check before undertaking the prosecution of a judge or

other person whom the Attorney General’s Office is statutorily

required to defend.

6. Defendant was prejudiced by the tactics employed by Attor-

ney General investigator Michael Ondejko when, during the

course of the criminal investigation, he interviewed defendant

while serving an investigative subpoena. Any information ob-

tained from defendant as a result of the violation of the Michigan

Rules and Professional Conduct cannot be used. Ondejko did not

communicate to defendant information reasonably sufficient to

permit defendant to appreciate the significance of the matter in

question. Defendant was not adequately consulted about the

conflict before the Attorney General’s investigation of her conduct.

7. Defendant was not prejudiced as a result of her interview by

Assistant Attorney General John Dakmak during the course of the

criminal investigation.

8. The analysis employed in this case does not run afoul of the

principles set forth in Attorney General v Pub Serv Comm, 243

Mich App 487 (2000), which held that the Attorney General’s

unique status requires accommodation, not exemption, under the

Michigan Rules of Professional Conduct. That case holds that the

Attorney General is subject to the Michigan Rules of Professional

2010] P

EOPLE V

ATERSTONE

369

Conduct. The rules do not permit a law firm to knowingly

represent a party whose interests are adverse to those of former

clients in the same or a substantially related matter without

consultation. Here, the Attorney General failed to consult with

defendant to obtain her consent. The Attorney General must

withdraw from the prosecution of this case to remedy the conflict

of interest. The order of the circuit court must be reversed and the

case must be remanded to the circuit court for further proceedings.

Reversed and remanded.

1. P

ROSECUTING

TTORNEYS —

ONFLICTS OF

NTEREST

A conflict of interest involving an assistant prosecuting attorney

does not automatically require recusal of the entire staff of the

prosecutor’s office, rather, courts examine whether the assistant

prosecuting attorney at issue has supervisory authority over other

prosecutors in the office or the authority to make policy.

2. A

TTORNEY AND

LIENT —

ONFLICTS OF

NTEREST

A lawyer who has formerly represented a client in a matter may not

thereafter represent another person in the same or a substantially

related matter in which that person’s interests are materially

adverse to the interests of the former client unless the former

client consents after consultation; a case is substantially associ-

ated with another case if the factual contexts of the two represen-

tations are similar or related (MRPC 1.9).

3. A

TTORNEY

ENERAL —

ONFLICTS OF

NTEREST

The Attorney General has the responsibility to recognize and avoid

conflicts of interest; the Attorney General has an affirmative duty

to perform a conflict check before undertaking the prosecution of

a judge or other person whom the office is statutorily required to

defend.

4. P

ROSECUTING

TTORNEYS —

ONFLICTS OF

NTEREST

The disqualification of an entire prosecutor’s office for an alleged

conflict of interest is not automatic; courts must consider the

client’s showing of actual prejudice and examine the extent to

which the client’s confidential information could be used to his or

her detriment.

5. A

TTORNEY AND

LIENT —

ONFLICTS OF

NTEREST

A party seeking the disqualification of counsel for a conflict of

interest bears the burden of demonstrating specifically how and as

to what issues in the case the likelihood of prejudice will result.

370 287 M

ICH

368 [Mar

6. A

TTORNEY

ENERAL —

ICHIGAN

ULES OF

ROFESSIONAL

ONDUCT

The Attorney General is subject to the Michigan Rules of Profes-

sional Conduct; the unique status of the Attorney General requires

accommodation, not exemption, under the rules; mechanical ap-

plication of the rules to the Attorney General is not possible and

dual representation by the Attorney General may be allowed in

certain circumstances not otherwise permitted in the arena of

private practice.

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

Solicitor General, and Anica Letica, Assistant Attorney

General, for the people.

Gerald K. Evelyn, Juan A. Mateo, and Paul C. Smith

for defendant.

Before: Z

AHRA

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

ELLY

and S

TEPHENS

,JJ.

URIAM

. This case is before us on remand from

the Supreme Court for consideration as on leave

granted, People v Waterstone, 485 Mich 1016 (2010),

limited to the issues whether the Attorney General’s

prosecution of defendant is consistent with the require-

ments of Michigan Rules of Professional Conduct

(MRPC) 1.7, 1.9, and 1.10 and consistent with Attorney

General v Pub Serv Comm, 243 Mich App 487; 625

NW2d 16 (2000) (AG v PSC). We reverse.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case involves defendant’s alleged conduct while

she was a circuit court judge in knowingly permitting

witnesses to commit perjury at a criminal trial. In 2005,

the Wayne County Prosecutor charged Alexander

Aceval and Ricardo Pena with narcotics trafficking and

defendant presided over their jury trial. Inkster Police

Officers Scott Rechtzigel and Robert McArthur alleg-

edly lied at trial to protect the identity of their confi-

2010] P

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371

dential informant, Chad Povish, who also allegedly lied

at trial.

Wayne County Assistant Prosecuting Attorney

Karen Plants was aware of the perjury and discussed it

with defendant ex parte. Defendant directed that the

transcripts of the two ex parte meetings initially be

sealed in an attempt to preserve the issue for appellate

purposes. One jury convicted Pena, but Aceval’s jury

could not reach a decision. Aceval eventually pleaded

guilty.

In 2006, Aceval, acting in propria persona, filed a

federal civil rights lawsuit under 42 USC 1983, naming

defendant along with 13 others. Paragraph 27 of the

complaint provided, in part:

In no less than two (2) secret ex-parte hearings with

Circuit Court Judge Mary Waterstone, Karen Plants told

the judge of perjured testimony by Robert McArthur, Scott

Rechtzigel and Chad Povish. . . . [J]udge Waterstone and

Plants then had the hearing transcript sealed. They also

just allowed this perjured testimony to go to the jury. The

judge did also order that the defense could not get a phone

record that would have lead [sic] to the discovery of the

perjured testimony. All of this has now been admitted to by

Karen Plants and Judge Mary Waterstone.

Also, paragraph 28-12 provided:

Mary Waterstone was the Circuit Court Judge at plain-

tiff’s trial. There is now unsealed transcript showing that

this judge knew of the perjured testimony an[d] withheld it

from plaintiff and the jury. Also this judge issued an order

about a phone record to keep plaintiff from learning about

the perjured testimony an[d] misled [the] defense stating

“No one lies in my court room.”

General Counsel for the Michigan Supreme Court

directed the Attorney General to provide counsel to

For additional facts regarding the trial, see People v Aceval, 282 Mich

App 379; 764 NW2d 285 (2009).

372 287 M

ICH

368 [Mar

defendant. The Attorney General assigned Assistant

Attorney General Steven Cabadas of the Public Em-

ployment, Elections, and Tort (PEET) Division to rep-

resent defendant. Cabadas reportedly spoke to defen-

dant three times on the telephone and filed a response

on her behalf. The federal court dismissed Aceval’s

lawsuit on March 17, 2008, because Aceval had failed to

provide the court with his address.

The Wayne County Prosecutor decided that, because

of a conflict of interest, she could not bring criminal

charges regarding the perjury. The prosecutor asked the

Michigan Prosecuting Attorney’s Coordinating Council

to assign a special prosecutor. Prosecutors from four

different counties declined to pursue the matter. The

Attorney General ultimately accepted the prosecution

and assigned the case to its Criminal Division, specifi-

cally assistant attorneys general William Rollstin and

John Dakmak.

During the course of the criminal investigation in

November of 2008, Attorney General investigator Michael

Ondejko interviewed defendant at her home, while serv-

ing an investigative subpoena. The following exchange

occurred during that interview, which Ondejko recorded:

Mr. Ondejko: And [Dakmak is] gonna be the assistant in

charge of that—those interviews. So we’ve got you on the

list as well as about 20 others.

Ms. Waterstone: As far as me.

Mr. Ondejko: Yeah.

Ms. Waterstone: This is in Karen Plants’ investigation.

Mr. Ondejko: Yes, yes. That’s—

Mr. Dakmak since has left the employ of the Attorney General.

It is unclear whether defendant knew that Ondejko was recording the

interview.

2010] P

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373

Ms. Waterstone: I assumed that it—

Mr. Ondejko:I—

Ms. Waterstone: —that’s what it was about.

Mr. Ondejko: [I] should’ve mentioned that.

Ms. Waterstone: That’s okay. That was a—it was kind of

an assumption, but I thought I should reclarify.

Mr. Ondejko: Yeah. That’s kinda, you know, that’s what

it centers around. And then the officers who, you know,

perjured themselves.

Ms. Waterstone: They did.

Before giving defendant the subpoena, Ondejko stated

that it looked as though the officers had perjured them-

selves and stated “the only question is why this all

happened.” Defendant then spoke to Ondejko at length;

the interview lasted 30 minutes and the resulting tran-

script exceeds 30 pages. Defendant shared her thoughts

regarding why the perjury had occurred. Near the end of

the interview, Ondejko gave the subpoena to defendant.

In response to the investigative subpoena, defendant

appeared without counsel in December of 2008. The

following exchange occurred:

Mr. Dakmak: You understand that you have the right

not to incriminate yourself, given any act that could get you

charged or potentially charged with a criminal act at any

point. Do you understand that?

Ms. Waterstone: I do.

Mr. Dakmak: And, of course, you have the right to consult

with an attorney who could advise you on whether or not you

should answer those questions. Do you understand?

Ms. Waterstone: I understand.

Mr. Dakmak: You have the right not to—strike that. Do

you have any questions for me regarding your rights

afforded to you under the Michigan [or the] United States

Constitution?

374 287 M

ICH

368 [Mar

Ms. Waterstone: No. My understanding was this in-

volved the investigation regarding Karen Plants; is that

correct?

Mr. Dakmak: Involving the investigation surrounding

the trial of Alexander Aceval, Ricardo Pena, Wayne County

Prosecutor’s Office and the police department.

Ms. Waterstone: Okay. That’s a little broader that I

understood.

Mr. Dakmak: Just so you know, we haven’t narrowed it

down to a defendant. We haven’t charged anybody with a

crime yet. We’re investigating the acts, everything sur-

rounding it. Do you understand?

Ms. Waterstone: I understand.

Mr. Dakmak: Do you want to go forward and answer the

questions we put forth to you today?

Ms. Waterstone: Sure.

In March 2009, the Attorney General brought a

felony complaint against defendant, Plants, and the

officers. The Attorney General charged defendant with

four felony counts of misconduct in office; two counts

related to the two ex parte communications, one count

involved the allowing of perjured testimony and the

final count concerned the concealment of perjured

testimony.

Defendant moved to dismiss the charges, arguing

that the criminal complaint lacked any specific allega-

tions of criminal intent. Defendant further argued that

the charges ran afoul of principles of judicial immunity

and separation of powers.

Defendant also moved to disqualify the Attorney

General because of his representation of her in the

Because the Supreme Court has limited the issues for consideration to

the issues whether the Attorney General’s prosecution of defendant is

consistent with the requirements of MRPC 1.7, 1.9 and 1.10 and AG v

PSC, these grounds for dismissal will not be further discussed.

2010] P

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375

federal civil lawsuit. Defendant contended that the

Attorney General had a conflict of interest and could

not bring the charges against her. In an attached

affidavit, defendant indicated that she had a series of

confidential communications with Cabadas about the

events that had occurred at the Aceval/Pena trial.

The Attorney General answered that no conflict of

interest existed because Cabadas had not communi-

cated any confidential information to the Criminal

Division. Cabadas also did not participate in the inves-

tigation or the prosecution of the criminal case against

defendant. The Attorney General added that, in any

event, any remedy would be limited to the appointment

of a special prosecutor, not the dismissal of the charges.

The Attorney General detailed certain screening proce-

dures and provided an affidavit from Cabadas regarding

his limited contacts with defendant.

The district court ruled that the Attorney General

should not be disqualified, noting that AG v PSC held

that the Attorney General’s unique nature precludes

the mechanical application of the MRPC. The court

observed that Aceval’s federal case had ended before

the Criminal Division began its investigation. The court

examined affidavits from assistant attorneys general

Cabadas, Rollstin, and Frank Monticello, the Attorney

General’s ethics officer, and stated that it was satisfied

that no sharing of information occurred. The court

determined that the MRPC had not been violated and

denied defendant’s motion to disqualify the Attorney

General.

Defendant appealed to the circuit court, which per-

mitted the parties to conduct additional discovery. The

Attorney General submitted an affidavit, indicating

that his office had been assigned 23,500 new cases in

the previous year. He stated that he did not review

376 287 M

ICH

368 [Mar

every incoming case. He had no knowledge of Aceval’s

federal civil action against defendant before the Crimi-

nal Division authorized criminal charges and had never

discussed the federal civil case with Cabadas.

The circuit court ruled that the Attorney General

need not be disqualified on the basis of a conflict of

interest. The court ruled that the Attorney General’s

Office operated as a firm, but it had sufficiently

screened Cabadas pursuant to MRPC 1.10 and also the

divisions acted independently. The court also decided

that defendant had not been prejudiced as a result of

Cabadas’ prior representation of her in the federal civil

case. The circuit court was not convinced by defen-

dant’s argument that the Attorney General should have

advised her that she was a target in the ongoing

investigation, ruling that defendant not only was on

notice that the investigation was not limited in scope,

but also had been advised of her constitutional rights.

Defendant filed a delayed application for leave to

appeal in this Court, which initially denied leave in an

unpublished order, entered December 17, 2009 (Docket

No. 294667). Defendant sought leave to appeal in the

Supreme Court, which, in lieu of granting leave to

appeal, remanded for consideration as on leave granted

and limited the issues as described earlier in this

opinion.

II. THE PARTIES’ ARGUMENTS

Defendant contends that the Attorney General

should be disqualified because of Cabadas’ representa-

tion of her in the related federal civil matter. She

maintains that the federal case has not been completely

resolved, because it was dismissed without prejudice,

and the Attorney General could be called upon to

continue to represent her in that action. There is a

2010] P

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ATERSTONE

377

conflict: the assistant attorneys general never advised

defendant that she was a target before interviewing her

in conjunction with this criminal matter. Even if the

Attorney General did not have knowledge of the federal

suit when he began the investigation in this case, the

Attorney General now is aware of the conflict. A “con-

flict wall” is not sufficient here; defendant’s consent to

the representation must be obtained.

The Attorney General answers that he and his office

need not be disqualified. The Attorney General’s Office

was statutorily required to defend defendant, a state

employee, in the federal civil case and the Attorney

General also must act as the chief law enforcement

officer for the state. The PEET Division, a separate

division located 90 miles away from the Criminal Divi-

sion, represented defendant in the federal lawsuit. No

confidential communications were disclosed and the

assistant attorneys general in the Criminal Division

were unaware of Cabadas’ involvement in the earlier

civil lawsuit. Although defendant complains that she

was not advised that she was a target of the investiga-

tion, statutory law does not require such advice and

defendant was clearly advised of her rights when she

appeared pursuant to the investigative subpoena.

III. STANDARD OF REVIEW

Whether a conflict of interest exists is a question of fact.

Camden v Kaufman, 240 Mich App 389, 399; 613 NW2d

335 (2000). This Court reviews for clear error the trial

court’s findings of fact regarding a motion to disqualify

counsel. Lamont Community Church v Lamont Christian

Reformed Church, 285 Mich App 602, 613; 777 NW2d 15

(2009); People v Tesen, 276 Mich App 134, 141; 739 NW2d

689 (2007). The Court reviews de novo the trial court’s

378 287 M

ICH

368 [Mar

application of the law to the facts, as well as the applica-

tion of “ ‘ethical norms.’ ” Id. (citation omitted).

IV. ANALYSIS

A. THE MICHIGAN RULES OF PROFESSIONAL CONDUCT

Defendant contends that the Attorney General

should be disqualified for violating the MRPC when the

Criminal Division prosecuted her regarding perjury at

the Aceval/Pena trial after the PEET Division defended

her from Aceval’s federal civil claims arising from the

same trial. We agree under the particular facts of this

case.

In this case, the Attorney General accepted the role of

prosecutor after four other prosecutors declined. A pros-

ecutor’s fundamental obligation is “ ‘to seek justice, not

merely to convict.’ ” People v Pfaffle, 246 Mich App 282,

291; 632 NW2d 162 (2001) (citation omitted). If a conflict

of interest arises for a prosecutor, the Legislature has

provided for the appointment of a special prosecutor.

People v Herrick, 216 Mich App 594, 598; 550 NW2d 541

(1996). See MCL 49.160(1), which provides:

If the prosecuting attorney of a county determines

himself or herself to be disqualified by reason of conflict of

interest or is otherwise unable to attend to the duties of the

office, he or she shall file with the attorney general a

petition stating the conflict or the reason he or she is

unable to serve and requesting the appointment of a special

prosecuting attorney to perform the duties of the prosecut-

ing attorney in any matter in which the prosecuting

attorney is disqualified or until the prosecuting attorney is

able to serve.

The disqualification of prosecutors because of a con-

flict of interest generally falls into two categories.

People v Doyle, 159 Mich App 632, 641-642; 406 NW2d

2010] P

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379

893 (1987), mod on reh, 161 Mich App 743 (1987). The

category at issue is disqualification for conflicts arising

out of a professional attorney-client relationship, in-

cluding when the prosecutor has become privy to con-

fidential information. See id. Cases regarding prosecu-

tor disqualification examine whether the prosecutor

learned confidential information that he or she ethically

may not use against the defendant and whether knowl-

edge of that information may be imputed to other

members of the prosecutor’s office. Id. The party mov-

ing for disqualification has the burden to show a conflict

of interest and specific prejudice. Kubiak v Hurr, 143

Mich App 465, 471; 372 NW2d 341 (1985).

Here, the Attorney General himself does not have a

direct conflict of interest, because his affidavit reflects

that he was not privy to confidential information in the

federal case. The instant case involves three assistant

attorneys general: Cabadas, Rollstin, and Dakmak. Re-

cusal of a prosecutor’s entire office, as requested here, is

not automatic where an assistant prosecuting attorney

is involved. Doyle, 159 Mich App at 645. Rather, courts

examine whether the assistant prosecuting attorney at

issue has supervisory authority over other prosecutors

in the office or has the authority to make policy. People

v Mayhew, 236 Mich App 112, 127; 600 NW2d 370

(1999). The three assistant attorneys general here do

not appear to have authority over other attorneys in the

office or the authority to make policy. Thus, disqualifi-

cation is not automatic; hence, we examine whether

Cabadas learned confidential information that he may

not use against defendant and whether knowledge of

that information may be imputed to other assistant

attorneys general.

Despite the Attorney General’s arguments to the

contrary, we conclude that Cabadas learned confidential

380 287 M

ICH

368 [Mar

information from defendant in the course of represent-

ing her in the federal case. Defendant’s affidavit indi-

cates that she shared confidential information with

Cabadas and told him the basis for the rulings she made

during the Aceval/Pena trial. We conclude that Caba-

das’ affidavit that defendant did not share confidential

information with him is disingenuous, particularly in

light of the answer to the complaint. Courts recognize

that a presumption arises that, during representation, a

client discloses potentially damaging confidences to his

or her attorney. In re Osborne (On Remand, After

Remand), 237 Mich App 597, 609; 603 NW2d 824

(1999). See also the comment to MRPC 1.6, which

provides, in part, that where lawyers are duty bound to

maintain confidentiality, clients are advised to commu-

nicate “fully and frankly” with the lawyer, even if the

information is damaging or embarrassing. Accord, the

comment to MRPC 1.0, indicating that clients who

know their communications will be private are more

inclined to adhere to their legal obligations. Further, an

attorney has a duty of confidentiality that involves “ ‘all

confidential information, whether privileged or unprivi-

leged, and whether learned directly from the client or

from another source.’ ” City of Kalamazoo v Mich

Disposal Serv Corp, 125 F Supp 2d 219, 242 (WD Mich

2000) (citation omitted).

Under statute, the Attorney General is charged with

defending judges from lawsuits, 2006 PA 345, art 7, part

2, § 302(2)

; and assistant attorneys general are cer-

tainly aware of that fact. Although the Criminal Divi-

sion may not have been specifically aware that Aceval

Article 7, part 2, § 302(2) of 2006 PA 345 provides: “The attorney

general shall defend judges of all state courts if a claim is made or a civil

action is commenced for injuries to persons or property caused by the

judge through the performance of the judge’s duties while acting within

the scope of his or her authority as a judge.”

2010] P

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381

had filed a lawsuit naming defendant, the Criminal

Division should have known that, had such a lawsuit

been filed, the PEET Division likely would have repre-

sented defendant. It follows that, at the very least,

knowledge of a potential defense of defendant by the

PEET Division should be imputed to the Attorney

General’s Office.

As reflected in the MRPC, an attorney owes alle-

giance to his or her client and generally may not

represent parties on both sides of a dispute. Barkley v

Detroit, 204 Mich App 194, 203; 514 NW2d 242 (1994);

Evans & Luptak, PLC v Lizza, 251 Mich App 187, 197;

650 NW2d 364 (2002). The Attorney General is subject

to the MRPC. AG v PSC, 243 Mich App at 504. The

conflict rules were designed “ ‘ “to condemn the cre-

ation and existence of the dual relationship instead of

merely scrutinizing the results that may flow there-

from.” ’ ” Barkley, 204 Mich App at 202-203 (citations

omitted).

MRPC 1.7, the rule regarding conflicts of interest of

current clients, provides:

(a) A lawyer shall not represent a client if the represen-

tation of that client will be directly adverse to another

client, unless:

(1) the lawyer reasonably believes the representation

will not adversely affect the relationship with the other

client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the represen-

tation of that client may be materially limited by the

lawyer’s responsibilities to another client or to a third

person, or by the lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation

will not be adversely affected; and

(2) the client consents after consultation. When repre-

sentation of multiple clients in a single matter is under-

382 287 M

ICH

368 [Mar

taken, the consultation shall include explanation of the

implications of the common representation and the advan-

tages and risks involved.

Here, defendant is not a current client of the Attor-

ney General. Cabadas’ representation of defendant

ceased when he notified defendant of the March 17,

2008, federal court dismissal. See Maddox v Burlin-

game, 205 Mich App 446, 450; 517 NW2d 816 (1994),

ruling that a lawyer’s representation ends “upon

completion of a specific legal service that the lawyer was

retained to perform.” We reject defendant’s stance that

Cabadas should have actively terminated the

attorney/client relationship with her in the federal civil

case, because defendant has provided no legal authority

requiring an attorney to affirmatively end the

attorney/client relationship once litigation has been

dismissed. Admittedly, the case was dismissed without

prejudice, but it has not been reinstated and the mere

possibility that Aceval might reinstate his federal civil

action at some future date should not be dispositive. We

also observe that over one year has passed since the

federal court dismissed the suit and the period of

limitations likely has expired.

Further, defendant

seems to concede in her brief that MRPC 1.7 does not

apply, because defendant identified only MRPC 1.9 and

1.10 as the specific rules at issue and did not reference

MRPC 1.7 in her initial pleadings filed with this Court.

MRPC 1.9 governs conflicts of interest regarding

former clients and provides that an attorney may not

represent a new client whose interests are adverse to a

former client, unless the former client consents:

The period of limitations for a claim under 42 USC 1983 in Michigan

is three years from when the claim accrues. Thompson-Bey v Stapleton,

558 F Supp 2d 767, 770 (ED Mich, 2008); MCL 600.5805(10).

2010] P

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383

(a) A lawyer who has formerly represented a client in a

matter shall not thereafter represent another person in the

same or a substantially related matter in which that

person’s interests are materially adverse to the interests of

the former client unless the former client consents after

consultation.

(b) Unless the former client consents after consultation,

a lawyer shall not knowingly represent a person in the

same or a substantially related matter in which a firm with

which the lawyer formerly was associated has previously

represented a client

(1) whose interests are materially adverse to that per-

son, and

(2) about whom the lawyer had acquired information

protected by Rules 1.6 and 1.9(c) that is material to the

matter.

matter or whose present or former firm has formerly

represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the

disadvantage of the former client except as Rule 1.6 or Rule

3.3 would permit or require with respect to a client, or

when the information has become generally known; or

(2) reveal information relating to the representation

except as Rule 1.6 or Rule 3.3 would permit or require with

respect to a client.

MRPC 1.9 prohibits a client’s representation where

that representation is directly or materially adverse to

the interest of another client or former client. Lamont,

285 Mich App at 614. The matters must be the same or

substantially related. The new representation must be

“materially adverse.”

The Attorney General maintains that Aceval’s fed-

eral § 1983 civil case is not the same or substantially

related to the instant criminal case. We must reject this

argument because both cases arose from the same

384 287 M

ICH

368 [Mar

alleged perjury at the Aceval/Pena trial. A case is

substantially associated with another case if “ ‘the

factual contexts of the two representations are similar

or related.’ ” Savoy Oil & Gas, Inc v Preston Oil Co, 828

F Supp 34, 36 (WD Mich, 1993) (citation omitted). Here,

both cases involve the alleged perjured testimony of the

police officers and the informant. Both cases relate to

defendant’s alleged cover-up of that perjury by way of

ex parte meetings with the prosecution. Consequently,

we decide that the matters are, if not exactly the same,

then substantially related.

The Attorney General also challenges whether the

new representation is materially adverse to the posi-

tion taken in the federal case. We decline to accept the

Attorney General’s attempt to minimize the advocacy

within Cabadas’ answer filed on behalf of defendant

in Aceval’s federal case. In the federal case, Cabadas

denied as false the allegations of paragraph 27, where

Aceval averred that defendant allowed perjured tes-

timony to go to the jury and precluded defense

counsel from obtaining a telephone record that would

have unveiled the perjury. Further, Cabadas denied as

false the allegations in paragraph 28-12, where

Aceval argued that defendant knew of the perjured

testimony, withheld it from him and the jury, and

issued an order to keep him from learning about it.

We decide that the Attorney General’s instant crimi-

nal prosecution is materially adverse to the defense

offered by the Attorney General on defendant’s be-

half in the federal civil case.

We find beneficial the comments to MRPC 1.9, al-

though we acknowledge that the text of the rule, not the

comments, is authoritative. See MRPC 1.0(c). The com-

ment to MRPC 1.9 provides that a lawyer who pros-

ecuted a defendant cannot properly represent that

2010] P

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385

defendant in a later civil action against the government

regarding the same transaction. The comment later

indicates that, in considering the degree of the lawyer’s

involvement, “[t]he underlying question is whether the

lawyer was so involved in the matter that the subse-

quent representation can be justly regarded as a chang-

ing of sides in the matter in question.”

In this case, it is clear that Cabadas could not

“change sides” and participate in the criminal investi-

gation of defendant given his confidential knowledge

gained from the federal civil case. See In re Osborne (On

Remand, After Remand), 237 Mich App at 601-602,

ruling that a conflict of interest existed when an attor-

ney who had represented the client at a termination of

parental rights hearing later joined the prosecutor’s

office and represented interests adverse to his former

client. The question remains as to whether the entire

Attorney General’s Office must be disqualified in light

of Cabadas’ former representation.

MRPC 1.10 sets forth the limitations on a lawyer’s

firm regarding the representation of a party whose

interests are adverse to the lawyer’s former clients. The

rule requires the firm to impose safeguards against

improper communications and disclose those safe-

guards. It provides, in pertinent part:

(a) While lawyers are associated in a firm, none of them

shall knowingly represent a client when any one of them

practicing alone would be prohibited from doing so by

Rules 1.7, 1.8(c), 1.9(a), or 2.2. If a lawyer leaves a firm and

becomes associated with another firm, MRPC 1.10(b) gov-

erns whether the new firm is imputedly disqualified be-

cause of the newly hired lawyer’s prior services in or

association with the lawyer’s former law firm.

(b) When a lawyer becomes associated with a firm, the

firm may not knowingly represent a person in the same or

386 287 M

ICH

368 [Mar

a substantially related matter in which that lawyer, or a

firm with which the lawyer was associated, is disqualified

under Rule 1.9(b), unless:

(1) the disqualified lawyer is screened from any partici-

pation in the matter and is apportioned no part of the fee

therefrom; and(2) written notice is promptly given to the

appropriate tribunal to enable it to ascertain compliance

with the provisions of this rule.

The comments to MRPC 1.0 and 1.10 define a law

firm as a lawyer or lawyers in a private firm, lawyers

employed in the legal department of a corporation or

other organization, and lawyers employed in a legal

services organization. We consider the Attorney Gener-

al’s Office to be a “firm” under these circumstances and

for purposes of this case only. We acknowledge that

certain federal cases have ruled that a large governmen-

tal agency cannot be considered akin to a private law

firm. See, e.g., United States v Caggiano, 660 F2d 184

(CA 6, 1981), deciding that conduct rules applying to a

private law firm do not necessarily translate to a

governmental agency, in part because a government

attorney’s duty to seek a just result differs from a

private attorney’s duty to channel advocacy toward

vindication of a client’s claim and thus decreases the

temptation to evade disciplinary rules. See, also, State v

Klattenhoff, 71 Hawaii 598, 604; 801 P2d 548 (1990),

where the court observed that the ethical rules for

private law firms are not applicable to the Attorney

General in every case given the Attorney General’s

statutorily imposed duties. Further, the comment to

MRPC 1.10 indicates that those employed in separate

units of a legal aid organization may not necessarily

constitute a firm.

Nevertheless, merely because the

That comment provides, in pertinent part: “Lawyers employed in the

same unit of a legal service organization constitute a firm, but not

2010] P

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387

ethics rules do not automatically translate to a govern-

mental agency does not mean that such agencies are

exempt from following the rules. Under the extraordi-

nary circumstances of this case, where the Attorney

General was asked to investigate a claim regarding his

former client’s admission of perjured testimony after

the Attorney General had defended the client against

the same claim, the Attorney General’s Office must be

deemed a firm. Supporting that conclusion is the com-

ment from MRPC 1.10 that indicates, in part, that, with

regard to imputed disqualification, “a firm of lawyers is

essentially one lawyer for purposes of the rules govern-

ing loyalty to the client....”

We therefore find distinguishable In the Matter of the

Grand Jury Investigation of Targets, 918 F Supp 1374

(SD Cal, 1996), cited by the prosecution, where the court

discussed the risk of shared confidential information. The

Grand Jury court stated that the “assumption of free flow

of information” that is within private law firms did not

apply to large governmental agencies because the risk of

shared confidential information was remote. Id. at 1378.

Here, however, the risk was not that the PEET Division

would share defendant’s confidential information with

the Criminal Division. Rather, here the risk was that

defendant would continue to believe that she was a client

of the Attorney General despite the Criminal Division’s

prosecution against her, Plants, and the police officers,

where the Criminal Division failed to consult with her

regarding the conflict.

Both MRPC 1.9 and 1.10 use the term “knowingly,”

which the comment to MRPC 1.0 defines as “actual

necessarily those employed in separate units. As in the case of indepen-

dent practitioners, whether the lawyers should be treated as being

associated with each other can depend on the particular rule that is

involved and on the specific facts of the situation.”

388 287 M

ICH

368 [Mar

knowledge of the fact in question.” The assistant attor-

neys general in the Criminal Division deny that they

had knowledge of the federal civil case. Nevertheless,

the comment to MRPC 1.0 also indicates that such

knowledge “may be inferred from circumstances.” As

noted, the prosecution of a judge is an unusual event

and knowledge of the potential federal case can be

inferred. The Attorney General never explained why

the office did not perform an automatic conflict check.

Given the PEET Division’s routine role in defending

judges in federal § 1983 civil claims, it is unreasonable

for the Attorney General to have failed to carry out a

conflict check. We bear in mind that the comment to

MRPC 1.7 indicates that lawyers should set forth ap-

propriate procedures to determine whether actual or

potential conflicts of interest exist, in both litigation

and nonlitigation matters. Also, under the MRPC,

“[e]very lawyer is responsible for observance of the

Rules of Professional Conduct.” See the comment to

MRPC 1.0. See also Justice C

ORRIGAN

’s concurring

statement in People v Gottschalk, 468 Mich 903 (2003),

that the Attorney General should weigh conflict-of-

interest issues before determining who should act as

the prosecutor in future proceedings where the Attor-

ney General previously filed an amicus curiae brief

supporting the defendant’s position.

Because the prosecution of a judge for permitting

perjured testimony at trial is a rare occurrence, that all

the more supports our belief that the Criminal Division

should have conducted a conflict check before under-

taking the investigation. Had the assistant attorneys

general done so, the related federal case would have

surfaced and the Attorney General would have con-

sulted defendant regarding her consent. We decline to

rule that the Attorney General should be exempt from

imputed knowledge, where a simple conflict check

2010] P

EOPLE V

ATERSTONE

389

would have revealed the federal suit. We therefore

conclude that knowledge may be inferred from these

circumstances, and, therefore, the Attorney General

should have obtained the consent of his former client,

defendant.

Defendant relies on In re Osborne, where an attorney

who had represented the respondent in a termination of

parental rights proceeding later joined the prosecutor’s

office and appeared for the petitioner in the permanent

wardship trial. This Court discussed the prejudice in-

herent in certain conflicts of interest:

“In Cuyler v Sullivan [446 US 335, 345-350; 100 S Ct

1708; 64 L Ed 2d 333 (1980)], the Court held that prejudice

is presumed when counsel is burdened by an actual conflict

of interest. In those circumstances, counsel breaches the

duty of loyalty, perhaps the most basic of counsel’s duties.

Moreover, it is difficult to measure the precise effect on the

defense of representation corrupted by conflicting inter-

ests. Given the obligation of counsel to avoid conflicts of

interest and the ability of trial courts to make early inquiry

in certain situations likely to give rise to conflicts...itis

reasonable for the criminal justice system to maintain a

fairly rigid rule of presumed prejudice for conflicts of

interest.... Prejudice is presumed only if the defendant

demonstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest adversely

affected his lawyer’s performance.’ Cuyler v Sullivan,

supra, 446 US [350, 348] (footnote omitted).” [In re Os-

borne, 230 Mich App 712, 717; 584 NW2d 649 (1998),

vacated and remanded 459 Mich 360 (1999), quoting

Strickland v Washington, 466 US 668, 692; 104 S Ct 2052;

80 L Ed 2d 674 (1984).]

This Court presumed prejudice in the case, stating

that the extent to which the respondent’s confidential

information could be used to her detriment was immea-

surable. In re Osborne, 230 Mich App at 721. The Court

reversed the termination order and remanded for a new

390 287 M

ICH

368 [Mar

hearing. The Court disqualified the entire Muskegon

County Prosecuting Attorney’s Office and directed the

probate court to appoint a special prosecutor.

Our Supreme Court ruled that the disqualified law-

yer should have recognized and avoided the conflict.

With regard to the disqualification of the entire pros-

ecutor’s office, however, the Court ruled that several

factors needed to be considered, including the extent

that the disqualified lawyer shared his knowledge and

the disqualified lawyer’s role in the prosecutor’s office.

The Supreme Court remanded the case to the Court of

Appeals and ordered the Court of Appeals to retain

jurisdiction and remand the case to the circuit court to

take additional proofs. In re Osborne, 459 Mich 360,

369-370; 589 NW2d 763 (1999).

On remand, after remand, this Court surmised that

the Supreme Court had decided that the attorney’s

conflict of interest was not an error that “ ‘ “seriously”

affects the fairness, integrity, or public reputation of

judicial proceedings,” ’ ” which would have compelled

automatic reversal. In re Osborne (On Remand, After

Remand), 237 Mich App at 601-602 (citation omitted).

The Court noted that the attorney testified at the

hearing that he did not recall obtaining any confidential

information from respondent. This Court determined

that actual prejudice had not been shown and thus the

Court would not reverse. Id. at 603.

In re Osborne demonstrates that attorneys have a

responsibility to recognize and avoid conflicts of inter-

est. The Attorney General shares that responsibility.

The Attorney General has a particular obligation given

that the PEET Division habitually defends judges. As a

result, the Attorney General has an obligation to make

early inquiry into situations where, as here, the Crimi-

nal Division has agreed to prosecute a case involving a

2010] P

EOPLE V

ATERSTONE

391

judge. We hold that the Attorney General has an affir-

mative duty to perform a conflict check before under-

taking the prosecution of a judge or other person whom

the office is statutorily required to defend.

In re Osborne also teaches that the disqualification of

an entire prosecutor’s office is not automatic. Rather,

courts must consider the client’s showing of actual

prejudice and examine the extent to which the client’s

confidential information could be used to his or her

detriment.

Klattenhoff, 71 Hawaii at 598, a case relied on by the

Attorney General, also requires a showing of prejudice.

Klattenhoff involved the Hawaii Attorney General’s

criminal investigation of a sheriff, who moved for dis-

qualification because the Administrative Division of the

Attorney General’s Office represented him in two un-

related civil actions when the Criminal Division began

its investigation. The Klattenhoff court noted that most

states permit the Attorney General to concurrently

represent conflicting interests when the Attorney Gen-

eral can ensure that the parties are independently

represented. The court held that the Hawaii Attorney

General simultaneously may represent a state employee

in a civil matter while prosecuting that employee in a

criminal matter, provided the Attorney General’s staff

can be assigned in such a manner as to afford indepen-

dent legal counsel in the civil matter, and provided that

representation in the civil matter does not result in

prejudice in the criminal matter. Id. at 605.

Here, the Attorney General points out that the

Criminal Division and the PEET Division are different

divisions and are separately located. The affidavits

reflect that the Criminal Division’s assistant attorneys

general did not obtain information from Cabadas for

use in this prosecution. Klattenhoff is not akin to this

392 287 M

ICH

368 [Mar

case, however, because the civil actions against the

sheriff did not, as here, involve the same or a substan-

tially related matter as the criminal matter. Where the

same case is at issue, the fact that the divisions are

separate is, by itself, insufficient to guard against preju-

dice in the criminal matter.

Klattenhoff directs courts to consider whether the

defendant has been prejudiced in the criminal case. A

party seeking the disqualification of counsel “ ‘bears

the burden of demonstrating specifically how and as to

what issues in the case the likelihood of prejudice will

result.’ ” Rymal v Baergen, 262 Mich App 274, 319; 686

NW2d 241 (2004) (citation omitted). Defendant main-

tains that she would not have spoken freely with

Ondejko and the assistant attorneys general in Novem-

ber and December of 2008, when unbeknownst to her

she was the target of an investigation, had she known

that the Attorney General was not representing her.

She emphasizes that Cabadas’ prior representation of

her caused her to later speak with investigator Ondejko

and assistant attorneys general Rollstin and Dakmak

without counsel present.

We agree that defendant was prejudiced by investi-

gator Ondejko’s tactics in the interview he recorded.

Any information obtained from defendant as a result of

the violation of the MRPC cannot be used. This Court is

disturbed by the methods used by Ondejko in delivering

the investigative subpoena. He took the subpoena to

defendant at her home, accepted coffee, and recorded

their meeting, presumably without her knowledge. He

stated that he was investigating the perjury at the

Aceval/Pena trial and told her, without prompting, that

she was one of 20 persons subpoenaed, which suggests

that she was just another witness among 20, not one

among four potential defendants. Further, Ondejko

2010] P

EOPLE V

ATERSTONE

393

agreed with defendant when she asked whether the

investigation involved Plants and he added “and the

officers.” He did not identify defendant as a person

subject to investigation. This failure to disclose is espe-

cially significant because a judge in defendant’s position

could have a reasonable belief that her good faith

rulings at trial would not subject her to criminal pros-

ecution. Thus, she could reasonably assume that the

Attorney General was not investigating her, but instead

remained her counsel. We cannot conclude that the

Attorney General communicated information “reason-

ably sufficient to permit [defendant] to appreciate the

significance of the matter in question.” See comment to

MRPC 1.0.

Moreover, the Attorney General’s reliance on the

language of the investigative subpoena to minimize the

Ondejko interview is misplaced. Although the subpoena

states that the person may have legal counsel and has

all constitutional rights, including the right against

self-incrimination, Ondejko did not give the subpoena

to defendant until after he interviewed her and he

never read the rights listed on it to her. Further, the

investigative subpoena lists only perjury and obstruc-

tion of justice as the crimes being investigated; notably,

the subpoena does not list misconduct in office, the

crime that the Attorney General has charged defendant

of committing. We thus decide that defendant was

prejudiced by the investigator’s interview.

We reach a contrary conclusion regarding defen-

dant’s interview with Assistant Attorney general Dak-

mak. Before defendant’s interview in December of

2008, Assistant Attorney General Dakmak read defen-

dant’s rights to her. Assistant Attorney General Dak-

mak indicated that the investigation included the trial,

over which defendant had presided. He said that the

394 287 M

ICH

368 [Mar

investigation involved “everything” and that the inves-

tigation had not been narrowed. At that time, it should

have been apparent that the Attorney General was not

representing defendant—indeed, defendant agreed to

waive her right to counsel at that time. The record

reflects that defendant herself commented that the

investigation was broader than she initially imagined.

Defendant is not unsophisticated in the law given her

four decades as an attorney and her judicial career. See

Factory Mut Ins Co v APComPower, Inc, 662 F Supp 2d

896, 902 (WD Mich, 2009) (noting that a client familiar

with the legal system had sufficient information to give

fully informed and valid consent to waive a conflict of

interest).

Both parties cite People v Davenport, 280 Mich App

464; 760 NW2d 743 (2008), where this Court ruled that

a rebuttable presumption arose that lawyers within the

prosecutor’s office shared confidential information be-

cause a member of the prosecutor’s office previously

had represented the defendant in a related matter. Id.

at 473. The Davenport Court ruled that prosecutors

may rebut that presumption by showing effective

screening procedures to isolate the defendant’s former

counsel from the prosecution. This Court adopted those

imposed in Manning v Waring, Cox, James, Sklar &

Allen, 849 F2d 222, 225 (CA 6, 1988), which ruled that

a firm has the burden of showing that (1) no improper

communication occurred and (2) it implemented ad-

equate safeguards to prevent future improper commu-

nications. Davenport, 280 Mich App at 473. This Court

added that courts should consider the office’s written

screening procedures, the likelihood of contact between

the office’s attorneys, and the rules that prevented the

attorney with the conflict of interest from accessing

files or information regarding the conflicted case. The

2010] P

EOPLE V

ATERSTONE

395

court also should weigh the size of the prosecutor’s

office when determining whether the screening was

effective.

Id. at 474-475.

Davenport is not on all fours with the instant case. In

Davenport, the fact that the prosecution targeted the

defendant was not in doubt; the only issue was whether

the former defense counsel shared confidential informa-

tion with the prosecutor. Here, however, defendant was

not aware that she was a target of the investigation.

The critical issue is not whether Cabadas shared defen-

dant’s confidential information with Dakmak and Roll-

stin, but whether defendant herself shared such infor-

mation on the basis of her reasonable belief that she

was a former client of the Attorney General’s “firm”

whose investigator questioned her under the guise of

investigating others.

Accordingly, it is largely immaterial to this analysis

that the Attorney General instituted screening proce-

dures to shield Cabadas after the investigation began.

Although Cabadas has been precluded from any partici-

pation in the criminal matter and staff members were

informed of the conflict in March of 2009, defendant

herself was not adequately consulted about the conflict

before the Attorney General’s investigation of her con-

duct and that of Plants and the police officers.

B. AG v PSC

The above analysis does not run afoul of the prin-

ciples set forth in AG v PSC, where this Court examined

After the trial court conducted an evidentiary hearing on remand, this

Court ruled that the prosecutor’s office had met its burden to show that

it took adequate steps to prevent improper communications and noted

that the record did not contain evidence of any improper communications

about the case. People v Davenport (After Remand), 286 Mich App 191,

195-197; 779 NW2d 191 (2009).

396 287 M

ICH

368 [Mar

whether a conflict of interest existed when the Attorney

General was both the party appellant and counsel for

the appellee. The Court noted that the Attorney Gen-

eral is a constitutionally mandated executive heading a

principal department of state government. AG v PSC,

243 Mich App at 496. See Const 1963, art 5, § 3.

Michigan statutory law permits the Attorney General to

intervene in actions where the interests of the state

require it. AG v PSC, 243 Mich App at 496, citing MCL

14.101. Additionally, the Legislature has recognized

that the Attorney General has a “unique mandate” to

perform all legal services for a principal executive

department or a state agency. AG v PSC, 243 Mich App

at 497. The Attorney General’s duties also include those

at common law. Id. This Court decided that the MRPC

may not always apply to the Attorney General; rather,

the circumstances

suggest the need for studied application and adaptation of

the rules of professional conduct to government attorneys

such as the Attorney General and her staff, in recognition

of the uniqueness of her office and her responsibility as the

constitutional legal officer of the state to represent the

various and sometimes conflicting interests of numerous

government agencies. In other words, the Attorney Gener-

al’s unique status requires accommodation, not exemption,

under the rules of professional conduct.[Id. at 506 (empha-

sis in original).]

This Court further ruled:

[T]he rules of professional conduct do apply to the office

of attorney general; [but] mechanical application of these

rules is not possible because of the unique nature of that

office, thus allowing dual representation in certain circum-

stances not otherwise permitted in the arena of private

practice....[Id. at 516.]

Pursuant to AG v PSC, this Court does not mechani-

cally apply the MRPC to the Attorney General. We

2010] P

EOPLE V

ATERSTONE

397

consider the unique nature of the Attorney General’s

Office and acknowledge that is, in part, what caused the

conflict here. The Attorney General is statutorily bound

to defend judges in civil suits, 2006 PA 345, art 7, part

2, § 302(2); the Attorney General also prosecutes cases

where county prosecutors do not, MCL 49.160. Never-

theless, AG v PSC holds that the Attorney General is

subject to the MRPC—the case does not exempt the

Attorney General from the conduct rules. As illus-

trated, the MRPC do not permit a firm to knowingly

represent a party whose interests are adverse to those

of former clients in the same or a substantially related

matter without consent after consultation. Here, the

Attorney General failed to consult with defendant to

obtain her consent.

The Attorney General argues that AG v PSC is

distinguishable because here the Attorney General is

not a named party. Defendant counters that although

the Attorney General here is not a named party, his

interests are exactly the same as if he were. We do not

find this point dispositive. In this case, when the

Attorney General’s investigation of defendant is exam-

ined under the MRPC, an insurmountable conflict of

interest arises.

V. CONCLUSION

We conclude that the Attorney General violated the

MRPC in undertaking the prosecution of defendant

regarding misconduct in office in conjunction with the

Aceval trial, where the Attorney General formerly de-

fended her against Aceval’s federal claims, without first

obtaining her consent. Although we do not automati-

cally apply the MRPC pursuant to AG v PSC, the

unusual circumstances of this case cannot permit the

accommodation sought by the Attorney General. To

398 287 M

ICH

368 [Mar

remedy the conflict of interest, we direct that the

Attorney General withdraw from the prosecution of this

case. We remand for further proceedings consistent

with this opinion.

Reversed and remanded. We do not retain jurisdic-

tion.

2010] P

EOPLE V

ATERSTONE

399

In re BECK

Docket No. 293138. Submitted January 6, 2010, at Detroit. Decided

March 4, 2010, at 9:10 a.m.

The parental rights of Lawrence M. Beck to his two minor children

were terminated pursuant to an order entered in the Oakland

Circuit Court, Family Division, Martha D. Anderson, J. The order

also required Beck to continue to provide child support for the

children. Beck filed in the Court of Appeals a delayed application

for leave to appeal, contending that his due process rights were

violated by the part of the order regarding his continuing obliga-

tion to pay child support. The Court of Appeals granted the

application.

The Court of Appeals held:

The responsibility to pay child support and the retention or

exercise of parental rights are not interdependent. A child pos-

sesses the inherent and fundamental right to receive support from

a parent. This ongoing right to financial support constitutes a

right independent of a parent’s retention or exercise of his or her

parental rights. Public policy dictates that involuntary termina-

tion of parental rights does not automatically extinguish the

parental responsibility of paying child support. Absent adoption,

an order terminating a parent’s parental rights does not terminate

that parent’s obligation to support his or her minor children.

Affirmed.

ARENT AND

HILD —

ERMINATION OF

ARENTAL

IGHTS —

ARENTS’

BLIGATION

UPPORT

INOR

HILDREN

Absent adoption, an order terminating a parent’s parental rights

does not terminate that parent’s obligation to support his or her

minor children.

Jessica R. Cooper, Prosecuting Attorney, John S.

Pallas, Chief, Appellate Division, and Thomas R.

Grden, Assistant Prosecuting Attorney, for the Depart-

ment of Human Services.

400 287 M

ICH

400 [Mar

Nancy A. Plasterer for Lawrence M. Beck.

Before: D

AVIS

,P.J., and F

ORT

OOD

and S

ERVITTO

,JJ.

URIAM

. We granted respondent’s delayed appli-

cation for leave to appeal a trial court order that

terminated his parental rights to the subject minor

children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j),

and that also ordered respondent to continue to provide

financial support for the minor children. We affirm.

Respondent is divorced from the children’s mother,

who retained custody of the children after respondent’s

parental rights were terminated. Respondent does not

challenge the trial court’s decision to terminate his

parental rights, but argues that the trial court violated

his due process rights by providing in the termination

order that his “[c]hild support and other support for the

children shall continue.”

“Both the Michigan Constitution and the United

States Constitution preclude the government from de-

priving a person of life, liberty, or property without due

process of law.” Reed v Reed, 265 Mich App 131, 159;

693 NW2d 825 (2005). “Parents have a significant

interest in the companionship, care, custody, and man-

agement of their children, and the interest is an ele-

ment of liberty protected by due process.” In re JK, 468

Mich 202, 210; 661 NW2d 216 (2003).

“The essence of due process is ‘fundamental fair-

ness.’ ” In re Adams Estate, 257 Mich App 230, 233-234;

667 NW2d 904 (2003) (citation omitted). There are two

types of due process: procedural and substantive. By Lo

Oil Co v Dep’t of Treasury, 267 Mich App 19, 32-33; 703

NW2d 822 (2005). The fundamental requirements of

procedural due process are notice and a meaningful

opportunity to be heard before an impartial decision

2010] In re B

ECK

401

maker. Mettler Walloon, LLC v Melrose Twp, 281 Mich

App 184, 213-214; 761 NW2d 293 (2008). “[T]he essence

of a substantive due process claim is the arbitrary

deprivation of liberty or property interests.” Id. at 201

(emphasis omitted). A person claiming a deprivation of

substantive due process “must show that the action was

so arbitrary (in the constitutional sense) as to shock the

conscience.” Id. at 200.

Although respondent frames his issue as implicating

his right to due process, apart from simply asserting

that his due process rights were violated, he does not

explain how the trial court’s decision resulted in a

denial of due process pursuant to the above standards.

The issue whether respondent may continue to be liable

for child support after his parental rights have been

terminated appears to be a straightforward question of

law, which is reviewed de novo on appeal. Minority

Earth Movers, Inc v Walter Toebe Constr Co, 251 Mich

App 87, 91; 649 NW2d 397 (2002).

MCL 712A.19b permits a court to terminate “parental

rights,” but is silent regarding parental responsibilities.

“This Court gives effect to the Legislature’s intent as

expressed in the statute’s terms, giving the words of the

statute their plain and ordinary meaning.” McManamon

v Redford Charter Twp, 273 Mich App 131, 135-136; 730

NW2d 757 (2006). When the language poses no ambiguity,

this Court need not look outside or construe the statute,

but, rather, need only enforce the statute as written. Id. at

136. “We cannot read requirements into a statute that the

Legislature did not put there.” Empire Iron Mining

Partnership v Orhanen, 455 Mich 410, 423; 565 NW2d

844 (1997).

Had the Legislature intended that a termination of

“parental rights” would also include a termination of

“parental responsibilities”, such as the responsibility of

402 287 M

ICH

400 [Mar

a parent to pay child support, it could have used specific

language to convey that intent. Moreover, rights and

responsibilities are separate and distinct concepts. A

“right” is a “power, privilege, or immunity secured to a

person by law.” Black’s Law Dictionary (7th ed). A

“responsibility,” on the other hand, is a “liability.” Id.

The responsibility to pay child support and the reten-

tion or exercise of parental rights are not interdepen-

dent. Michigan law does not, for example, unequivocally

hold (nor would it be in the best interest of a child to do

so) that a fit parent should be prevented from visitation

with his or her child simply because the parent is

unable to pay child support.

Here, in the context of parent-child relationships,

there are actually two distinct rights at issue. While, as

previously stated, a parent has a legal right to the

companionship, care, custody, and management of his

or her children, In re JK, 468 Mich at 210, “[i]t is well

settled that children have the right to receive financial

support from their parents and that trial courts may

enforce that right by ordering parents to pay child

support,” Borowsky v Borowsky, 273 Mich App 666,

672-673; 733 NW2d 71 (2007). That right cannot be

bargained away by the parents, Laffin v Laffin, 280

Mich App 513, 518; 760 NW2d 738 (2008), and, “[a]b-

sent adoption, the legal obligation to support a child

remains with his natural parents.” Wilson v Gen Motors

Corp, 102 Mich App 476, 480; 301 NW2d 901 (1980).

Thus, a child possesses the inherent and fundamental

right to receive support from a parent. This ongoing

right to financial support constitutes a right indepen-

dent of a parent’s retention or exercise of his or her

parental rights.

Pursuant to MCL 722.3(1), a child’s parents “are

jointly and severally obligated to support a minor as

2010] In re B

ECK

403

prescribed in...MCL552.605, unless a court of com-

petent jurisdiction modifies or terminates the obliga-

tion or the minor is emancipated by operation of law,

except as otherwise ordered by a court of competent

jurisdiction.” This Court in Bradley v Fulgham, 200

Mich App 156, 159; 503 NW2d 714 (1993), held that

termination of a parent’s parental rights pursuant to a

voluntary release under the Adoption Code extin-

guishes the obligation to pay child support.

This Court

subsequently held in Evink v Evink, 214 Mich App 172,

176; 542 NW2d 328 (1995), though, “that in the absence

of a clear legislative directive stating otherwise, where a

biological parent voluntarily releases parental rights to

the children and custody remains with the other bio-

logical parent, the termination of parental rights does

not terminate the parent’s obligation to support the

child.” We find no appreciable difference between a

voluntary and an involuntary termination insofar as

the legal effect of the order is concerned. A parent’s

rights are no less terminated when the termination is

voluntary rather than involuntary.

Public policy further dictates a holding that involun-

tary termination of parental rights does not automati-

cally extinguish the parental responsibility of paying

child support. First, the objectives of a termination of

parental rights proceeding are to protect the child, In re

Johnson, 142 Mich App 764, 765; 371 NW2d 446 (1985),

and to provide permanence and stability to a child’s life.

Eliminating the benefit of child support after a termi-

nation of parental rights does not assist in protecting

the child from any harm emanating from the prior

parental relationship; instead, it denies the child ben-

efits that are based on the child’s needs and the

This case does not involve a voluntary release of parental rights under

the Adoption Code.

404 287 M

ICH

400 [Mar

parent’s ability to pay. That the duty to pay child

support survives a termination of parental rights also

fosters the goal of creating stability and permanency in

the life of a child.

Second, as noted in State v Fritz, 801 A2d 679,

684-685 (RI, 2002), “[a]bsent an adoption, terminating

support from one parent necessarily places the full

financial responsibility on the other parent, often with

assistance from the state.” In these times of difficult

financial circumstances, policy considerations support

the avoidance of unnecessarily creating further finan-

cial burdens on the government, or its individual citi-

zens.

Finally, if a judgment involuntarily terminating pa-

rental rights automatically discharges a parent from

responsibility for child support, it could potentially lead

to results detrimental to the child’s welfare. It may, for

example, force a parent to forgo reporting the abusive

or neglectful behavior of a coparent in order to preserve

a child’s right to receive financial support. It may also

provide a vehicle for the avoidance of a support obliga-

tion by a parent; an irresponsible parent could quickly

realize that he or she could escape liability for child

support by abusing or neglecting their child.

In order to effectuate the statutory scheme by which

the rights and responsibilities of parents and children

are governed, and to avoid potentially detrimental or

injurious consequences, we hold that, absent adoption,

an order terminating a parent’s parental rights does not

terminate that parent’s obligation to support his or her

minor children. Accordingly, we affirm the trial court’s

order requiring respondent to continue to pay child

support despite the termination of his parental rights.

Affirmed.

2010] In re B

ECK

405

DEXTROM v WEXFORD COUNTY

Docket No. 281020. Submitted May 14, 2009, at Petoskey. Decided March

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

Ron Dextrom, Tony and Donota Cassone, and other property owners

in Wexford County brought an action in the Wexford Circuit Court

against Wexford County, the Wexford County Landfill, and the

Wexford County Department of Public Works, seeking damages for

property damage and other economic injuries resulting from

groundwater contamination allegedly caused by defendants’ land-

fill. Plaintiffs alleged, in part, claims for nuisance, nuisance per se,

trespass, negligence, gross negligence, and negligence per se.

Defendants moved for summary disposition on the basis of gov-

ernmental immunity, citing MCR 2.116(C)(7) and (10). Ron Dex-

trom and certain other plaintiffs filed a brief in opposition to the

motion. Tony and Donota Cassone and other plaintiffs also filed a

brief in opposition to defendants’ motion and they also requested

that summary disposition be entered in their favor under MCR

2.116(I)(2). The trial court, D

AVID

A. H

OGG

, J., denied both motions

for summary disposition, stating that genuine issues of material

fact existed. Defendants appealed, and Ron Dextrom and certain

other plaintiffs cross-appealed.

The Court of Appeals held:

1. Counties have statutory authority under MCL 123.737 to

own and run waste disposal facilities. Although certain provisions

of the Natural Resources and Environmental Protection Act, MCL

324.101 et seq., prohibit the operation of an unlicensed landfill, as

defendants did for a period, those provisions do not show a

legislative intent to withdraw defendants’ authority to operate a

refuse system for a violation of the environmental protection law.

The trial court correctly concluded that a landfill of a governmen-

tal agency that is operating in violation of state licensing and

environmental protection laws does not constitute an ultra vires

activity of the agency not subject to the protection of governmental

immunity.

2. The operation of a landfill by a governmental agency is

ordinarily a governmental function, for which the governmental

agency is generally immune.

406 287 M

ICH

406 [Mar

3. Two tests must be satisfied before an activity may be

deemed a proprietary function for purposes of the exception to

governmental immunity for propriety functions. First, the

activity must be conducted primarily for the purpose of produc-

ing a pecuniary profit. Second, the activity cannot normally be

supported by taxes or fees. A court, in determining whether the

agency’s primary purpose is to produce a pecuniary profit, must

consider, first, whether a profit is actually generated and,

second, where the profit generated is deposited and how it is

spent. The evidence shows that in 1990 the landfill began

generating substantial profits, although no monies were spent

on unrelated projects until from 2000 to 2005. The evidence

raises a question concerning whether defendants’ motivation

behind the operation of the landfill changed over time. The

evidence supports the inference that since 2000, perhaps earlier,

the landfill was operated for the primary purpose of making a

profit. The mere fact that defendants did not spend the primary

portion of the landfill’s profits on unrelated expenses is not

conclusive proof that defendants were not nevertheless operat-

ing the landfill primarily for the purpose of producing a

pecuniary profit. The trial court, in considering the motions for

summary disposition under MCR 2.116(C)(10), did not err by

concluding that there was a question of material fact concerning

whether the landfill was being operated for the primary purpose

of making a pecuniary profit, including whether that motive

changed over time.

4. The fact that fees exclusively support the landfill is not

sufficient in and of itself to avoid the proprietary function excep-

tion. The trial court must also consider the scope of the landfill in

relation to the size of the community, its profitability, and how

other communities of similar size support their landfills. The trial

court, in considering the motions for summary disposition under

MCR 2.116(C)(10), did not err by finding that there was a question

of fact whether defendants’ operation of the landfill was subject to

the proprietary function exception to governmental immunity.

5. The trial court did not err by considering the affidavit of an

expert for certain plaintiffs in ruling that a genuine issue of

material fact existed concerning when the contamination oc-

curred. There is no requirement that an expert’s qualifications

and methods be incorporated into an affidavit submitted in

support of, or opposition to, a motion for summary disposition. The

content of the affidavit must be admissible in substance, not form.

Plaintiffs do not attack the admissibility of the content of the

2010] D

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407

affidavit, only its foundation. The affidavit need only show that the

affiant, if sworn as a witness, can testify competently to the facts

stated in the affidavit.

6. It is appropriate under the circumstances of this case,

where further factual development is required regarding defen-

dants’ motion for summary disposition on the ground of gov-

ernmental immunity and application of the proprietary function

exception to governmental immunity remains a question of law

for the court, for the trial court to hold an evidentiary hearing

on remand for the purpose of obtaining the factual development

necessary to determine whether defendants’ operation of the

landfill was subject to the proprietary function exception. If the

trial court then determines that defendants’ operation of the

landfill is subject to the proprietary function exception as a

matter of law, it should then deny defendants’ summary dispo-

sition motion under MCR 2.116(C)(7) and proceed to trial on the

substance of plaintiffs’ claims. If the trial court determines that

defendants’ operation of the landfill is not subject to the

proprietary function exception as a matter of law, then the court

should grant defendants’ summary disposition motion under

MCR 2.116(C)(7).

Affirmed, but remanded for further proceedings consistent

with the opinion of the Court of Appeals.

1. G

OVERNMENTAL

MMUNITY —

ORDS AND

HRASES —

OVERNMENTAL

UNC-

TIONS

A governmental agency is generally immune from tort liability if

it is engaged in the exercise or discharge of a governmental

function; a governmental function is an activity that is ex-

pressly or impliedly mandated or authorized by constitution,

statute, local charter or ordinance, or other law (MCL

691.1401[f], 691.1407[1]).

2. C

OUNTIES —

ASTE

ISPOSAL

ACILITIES —

ICENSES —

LTRA

IRES

CTIVI-

TIES

Counties are authorized by statute to own and run waste disposal

facilities; although certain provisions of the Natural Resources

and Environmental Protection Act prohibit the operation of an

unlicensed landfill by a county, those provisions do not show a

legislative intent to withdraw a county’s authority to operate a

waste disposal facility for a violation of the environmental protec-

tion laws; a county landfill operating in violation of state licensing

and environmental protection laws does not constitute an ultra

vires activity (MCL 123.737, 324.11509, 324.11512[2]).

408 287 M

ICH

406 [Mar

3. G

OVERNMENTAL

MMUNITY —

ROPRIETARY

UNCTION

XCEPTION

An activity conducted by a governmental agency, before it may be

deemed a proprietary function, must satisfy two tests: the activity

must be conducted primarily for the purpose of producing a

pecuniary profit and it cannot normally be supported by taxes or

fees; whether a profit is actually generated, where a profit is

deposited, and how it is spent must first be considered in deter-

mining whether the agency’s primary purpose is to produce a

pecuniary profit (MCL 691.1413).

4. G

OVERNMENTAL

MMUNITY —

ROPRIETARY

UNCTION

XCEPTION

The proprietary function exception to governmental immunity

does not apply to an activity if the activity is normally supported

by taxes or fees, even if the activity is conducted for the primary

purpose of making a pecuniary profit; it is important to consider

the type of activity under examination when deciding whether

an activity is normally supported by taxes or fees (MCL

691.1413).

5. W

ITNESSES —

OTIONS AND

RDERS —

XPERT

ITNESSES —

FFIDAVITS —

UMMARY

ISPOSITION

The qualifications and methods employed by an expert need not be

incorporated into an affidavit by the expert submitted in support

of, or opposition to, a motion for summary disposition; the content

of the affidavit must be admissible in substance, not form (MCR

2.116[G][6], 2.119[B][1]).

6. G

OVERNMENTAL

MMUNITY —

ROPRIETY

UNCTION

XCEPTION

The determination whether the proprietary function exception to

governmental immunity is applicable in an action is a question of

law for the court; a trial court may hold an evidentiary hearing to

obtain the factual development necessary to determine whether a

governmental agency’s activities are subject to the proprietary

function exception (MCL 691.1413).

Olson, Bzdok & Howard, P.C. (by Christopher M.

Bzdok and Jeffrey L. Jocks), for Ron Dextrom and

others.

Law Offices of James P. O’Neill & Associates (by

James P. O’Neill) and Davis Listman PLLC (by Robert

C. Davis) for Tony and Donota Cassone and others.

2010] D

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409

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

M. Altobelli), for Wexford County, Wexford County Land-

fill, and Wexford County Department of Public Works.

Before: W

HITBECK

,P.J., and D

AVIS

and G

LEICHER

,JJ.

URIAM

. This case arises from the operation of a

landfill by defendants, Wexford County, Wexford County

Landfill, and the Wexford County Department of Public

Works. Plaintiffs are property owners who allege that

contaminants from the landfill entered their groundwater,

causing property damage and other economic injuries.

Defendants asserted a defense of governmental immunity.

The trial court found that, although defendants’ unli-

censed operation of the landfill was not ultra vires, there

were questions of material fact concerning whether the

operation fell within the proprietary function exception to

governmental immunity.

Defendants now appeal as of

right the trial court’s order denying their motion for

summary disposition. And certain plaintiffs

cross-

appeal, challenging the trial court’s denial of their

cross-motion for summary disposition. We affirm, but

remand for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

In late 1973, Wexford County and its Department of

Public Works commenced operation of the Wexford

County Landfill. A special use permit that the state of

Michigan issued allowed Wexford County and the De-

partment of Public Works to establish the landfill on an

80-acre site of state-owned land in Cedar Creek Town-

ship. Throughout the 1970s and 1980s, the landfill

MCL 691.1413.

Plaintiffs have divided themselves into two groups represented by

different counsel. We refer to the group that filed a summary disposition

motion in the trial court, and now cross-appeal, as “certain plaintiffs.”

410 287 M

ICH

406 [Mar

accepted waste only from Wexford County residents. In

1990, the landfill began accepting waste from Missau-

kee County, which borders Wexford County. The Mis-

saukee County waste that the landfill accepted has

never accounted for more than 13.2 percent of the

landfill’s total refuse intake.

During the 1980s, concerns emerged regarding

possible contamination of the groundwater flowing

beneath the landfill. In 1984, analysis of water col-

lected from monitoring wells revealed the presence of

chemical contaminants attributable to the landfill,

and in 1986, the Michigan Department of Natural

Resources recommended capping portions of the

landfill to prevent further contamination. Defen-

dants and the Department of Natural Resources

engaged in a lengthy and contentious dispute over the

measures necessary to prevent further groundwater

contamination. In 1989, the Department of Public

Works and the Department of Natural Resources

entered into a consent order, which observed, in

relevant part, “The Department alleges, but the

County DPW does not admit, that past landfill opera-

tions and other disposal activities at the disposal site

has [sic] resulted in, and continues to cause, unper-

mitted discharges to, and resultant contamination of,

the groundwaters of the State....”Pursuant to the

consent order, the Department of Public Works

agreed to implement a remedial action plan calling

for the complete closure of unlined landfill areas,

additional investigation of the extent of landfill-

connected groundwater contamination, and mainte-

nance of monitoring wells. Later, Wexford County

also agreed to install a “groundwater pump and

treat[ment] system, consisting of five...extraction

wells and an aeration pond.”

2010] D

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411

Defendants did not promptly close all unlined landfill

locations, and for several years after the consent agree-

ment’s execution, the Department of Natural Resources

refused to license the facility. Defendants eventually

implemented remediation efforts satisfactory to the

Department of Natural Resources, and the landfill

regained its license. Cleanup and monitoring activities

continued through the 1990s, and in 2002, defendants

entered into a second consent order with the Depart-

ment of Natural Resources and Environment.

Subse-

quent detection of more contamination obligated Wex-

ford County to expend substantial sums for wells,

pumps, and other equipment. In 2004, Wexford County

agreed to provide an alternate water system for resi-

dents with contaminated wells.

Notwithstanding significant Wexford County ex-

penditures related to environmental remediation, the

landfill generated a profit from 1984 through 2002.

Historical audit information that Wexford County

submitted revealed that the landfill achieved its

greatest profit in 2000, when its assets minus liabili-

ties totaled slightly more than $12 million. Between

2000 and 2006, Wexford County spent approximately

$27.6 million of landfill revenues on activities directly

related to the landfill, including contamination inves-

tigation, contamination cleanup, and preventative

measures mandated by the consent orders. Within

the same period, Wexford County spent 10 percent of

landfill profits, about $2.7 million, on activities un-

related to the landfill, including insurance expenses,

courthouse bond payments, contributions to the gen-

eral fund, and a 911 radio project.

The Department of Natural Resources is now known as the Depart-

ment of Natural Resources and Environment.

412 287 M

ICH

406 [Mar

Plaintiffs commenced this action in September 2006,

asserting claims for nuisance, nuisance per se, trespass,

negligence, gross negligence, and negligence per se.

May 2007, defendants moved for summary disposition

of plaintiffs’ tort claims on the basis of governmental

immunity, citing MCR 2.116(C)(7) and (10). Defendants

argued that (1) the landfill operation qualified as a

governmental function, (2) defendants had not operated

the landfill for the primary purpose of making a profit,

and (3) user fees had always “almost exclusively” sup-

ported the landfill. Defendants further argued that the

contamination had taken place in the 1970s and 1980s,

when the landfill was still using unlined cells, well

before there were any transfers out of the landfill’s fund

to pay for unrelated projects.

Certain plaintiffs filed a brief in opposition to defen-

dants’ motion, arguing that defendants were not en-

titled to immunity because their operation of the land-

fill was in violation of the law and, therefore, ultra vires.

Further, certain plaintiffs argued that defendants were

not entitled to immunity because the landfill operation

was proprietary, conducted for the purpose of making a

profit, and not of the size or scope normally supported

by fees or taxes in a community the size of Wexford

County. Certain plaintiffs added that even if the landfill

was covered by governmental immunity in the 1970s

and 1980s, defendants could not show that the contami-

nation originated at that time. Certain plaintiffs sub-

mitted the affidavit of Christopher Grobbel, who opined

that contamination was still flowing from the landfill at

the present time. Certain plaintiffs asked that summary

disposition be entered in their favor.

The complaint also contains an inverse condemnation count, which is

not involved in this appeal. In January 2007, an amended complaint was

filed that added more plaintiffs, but reiterated the same counts in the

original complaint.

2010] D

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413

The remaining plaintiffs filed a brief in opposition to

defendants’ motion, also requesting that summary dis-

position be entered in their favor under MCR

2.116(I)(2). Like certain plaintiffs, these plaintiffs ar-

gued that defendants were not entitled to immunity

because the landfill operation was proprietary, and was

not of the size or scope normally supported by fees or

taxes in a community the size of Wexford County.

At a hearing on the cross-motions for summary

disposition, defendants briefly argued, for the first

time, that Grobbel’s affidavit was inadmissible because

it did not list his expert qualifications or explain his

methods, and, therefore, should not be considered by

the trial court. The trial court took the parties’ cross-

motions under advisement.

The trial court later issued a written opinion and

order denying both motions for summary disposition.

After reciting some of the landfill revenue and expen-

diture evidence, the trial court deemed summary

disposition inappropriate on the first prong of the

proprietary function test, because “[t]he County’s

purpose in operating the landfill for pecuniary profit

has not been conclusively proved or refuted by the

numerous exhibits filed by the parties. Trial testi-

mony of the people who made these decisions is

necessary to accurately adjudicate this issue.” The

trial court opined that questions of fact also existed

regarding whether “units of government like Wexford

County” commonly “engage in business activities of

this magnitude primarily to meet the garbage dis-

posal needs of their residents, or are landfills of this

size and type usually maintained for profit by public

or private entities[.]” Accordingly, the trial court

stated that “[t]his question is unanswered by the

documentary evidence and presents a genuine issue

414 287 M

ICH

406 [Mar

of material fact that must be addressed at trial.” The

trial court also noted the possibility that the landfill’s

primary purpose might have changed over time, and

that “[i]f facts at trial show this to be true, the time

when the contamination occurred becomes material

to the issue of governmental immunity.”

Therefore, the trial court found that the parties’

competing expert testimony “discloses the time of con-

tamination to be a disputed issue of fact.” The trial

court also rejected plaintiffs’ suggestion that defen-

dants had engaged in ultra vires conduct, finding that

“[a] landfill operating in violation of state licensing

requirements is not a [sic] ultra vires activity and must

be afforded governmental immunity, unless another

specific exception applies.”

II. MOTIONS FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(10)

A. STANDARD OF REVIEW

We first consider the motions for summary disposi-

tion under MCR 2.116(C)(10). Under that court rule, a

party may move for dismissal of a claim on the ground

that there is no genuine issue with respect to any

material fact and the moving party is entitled to judg-

ment as a matter of law. The moving party must

specifically identify the undisputed factual issues and

support its position with documentary evidence.

When

reviewing a motion for summary disposition brought

under MCR 2.116(C)(10), a court must examine the

documentary evidence presented and, drawing all rea-

sonable inferences in favor of the nonmoving party,

determine whether a genuine issue of material fact

MCR 2.116(G)(3)(b) and (4); Maiden v Rozwood, 461 Mich 109, 120;

597 NW2d 817 (1999).

2010] D

EXTROM V

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415

exists.

A question of fact exists when reasonable minds

could differ as to the conclusions to be drawn from the

evidence.

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

a motion for summary disposition,

as well as questions

of statutory interpretation

and the construction and

application of court rules.

B. ULTRA VIRES ACTIVITY

A governmental agency is generally immune from

tort liability “if the governmental agency is engaged in

the exercise or discharge of a governmental function.”

And a governmental function is “an activity that is

expressly or impliedly mandated or authorized by con-

stitution, statute, local charter or ordinance, or other

law.”

Here, there can be no dispute that operation of a

landfill is ordinarily a governmental function. In Cole-

man v Kootsillas,

the Michigan Supreme Court noted

MCR 2.116(G)(5); Maiden, 461 Mich at 120; Quinto v Cross & Peters

Co, 451 Mich 358, 361-362; 547 NW2d 314 (1996); see also Smith v Globe

Life Ins Co, 460 Mich 446, 454-455&n2;597NW2d 28 (1999).

Glittenberg v Doughboy Recreational Indus (On Rehearing), 441 Mich

379, 398-399; 491 NW2d 208 (1992), reh den sub nom Spaulding v Lesco

Int’l Corp, 441 Mich 1202 (1992).

Maiden, 461 Mich at 118; Spiek v Dep’t of Transp, 456 Mich 331, 337;

572 NW2d 201 (1998); Tillman v Great Lakes Truck Ctr, Inc, 277 Mich

App 47, 48; 742 NW2d 622 (2007); Guerra v Garratt, 222 Mich App 285,

288; 564 NW2d 121 (1997).

Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d

47 (1996).

Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 133; 624 NW2d

197 (2000).

MCL 691.1407(1).

MCL 691.1401(f).

Coleman v Kootsillas, 456 Mich 615, 619; 575 NW2d 527 (1998).

416 287 M

ICH

406 [Mar

that, “with respect to a municipality’s collection and

disposal of its own garbage, its activities involve a

governmental function.” “Cities have a statutory right

to own and run facilities to dispose of their own waste

and garbage.”

“Moreover, they may form agreements

jointly to run the facilities.”

Garbage collection and

disposal is “a matter of public health and a governmen-

tal function,” even if the garbage comes from other

jurisdictions.

However, certain plaintiffs’ contend that defendants’

operation of the landfill without a license and in disre-

gard of applicable environmental regulations consti-

tuted an ultra vires activity not subject to the protection

of governmental immunity.

In Richardson v Jackson Co,

the Michigan Supreme

Court contrasted governmental functions with ultra

vires activities, explaining that “governmental agencies

are not entitled to immunity under the act for injuries

arising out of ultra vires activity, defined as activity not

expressly or impliedly mandated or authorized by law.”

In Richardson, a person drowned at a public beach

located in a county park and the plaintiff alleged that

governmental immunity did not apply because the

county’s operation of a swimming beach was in viola-

tion of various sections of the Marine Safety Act.

18, 19

However, the county was statutorily authorized “to

operate, equip, and maintain this beach as a recre-

Id. at 619-620, citing MCL 123.261 and MCL 324.4301.

Id. at 620.

Id.

Richardson v Jackson Co, 432 Mich 377, 381; 443 NW2d 105 (1989)

(emphasis in original).

Then codified as MCL 281.1001 et seq.

Richardson, 432 Mich at 380.

2010] D

EXTROM V

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417

ational facility.”

Accordingly, the Supreme Court

framed the issue presented in Richardson as “how

the...governmental function test applies to an activity

authorized generally by one statute, yet regulated by

another.”

In resolving the issue, the Supreme Court explained

that activities authorized by one statute, yet regulated

by another, generally remain subject to and protected

by governmental immunity:

Enabling acts, which grant authority in broad terms,

must be distinguished from regulatory statutes. Im-

proper performance of an activity authorized by law is,

despite its impropriety, still “authorized” within the

meaning of the...governmental function test. An agen-

cy’s violation of a regulatory statute that requires the

agency to perform an activity in a certain way cannot

render the activity ultra vires, as such a conclusion

would swallow the [governmental immunity] rule by

merging the concepts of negligence and ultra vires.

In applying the “governmental function” test of the

immunity statute, this Court must consider that statute’s

breadth. The statute extends immunity “to all governmen-

tal agencies for all tort liability whenever they are engaged

in the exercise or discharge of a governmental function.”

[

]

Nothing in the governmental immunity act suggests [that]

the Legislature intended to treat the failure to meet a

“condition precedent,” such as obtaining a license or per-

mit, any differently for immunity purposes than the failure

to meet other sorts of regulatory duties. None of the act’s

four narrowly drawn exceptions single out activity condi-

tioned on permits or licenses for special treatment....

[A]ctivities conducted in violation of regulations other than

approval requirements are as “unauthorized” as activities

Id. at 385; see MCL 123.51.

Richardson, 432 Mich at 381.

Emphasis in original.

418 287 M

ICH

406 [Mar

conducted without proper approval. Licensing is nothing

more than an intense form of regulation.

The Legislature did not intend that the term “governmen-

tal function” be interpreted so that immunity for activity

authorized generally by statute should evaporate upon the

failure to perform a regulatory condition contained in another

statute. In sum, ultra vires activity is not activity that a

governmental agency performs in an unauthorized manner.

Instead, it is activity that the governmental agency lacks

legal authority to perform in any manner.

[

]

The Supreme Court held that the Legislature’s impo-

sition of a “regulatory duty” on operators of public

beaches did not signal its intent “to condition all authority

to engage in that activity upon compliance with that

duty.”

Here, the statute authorizing defendants’ landfill

operation reads:

A county establishing a department of public works

shall have the following powers to be administered by the

board of public works subject to any limitations thereon:

***

[

]

within 1 or more areas

in the county and to improve, enlarge, extend, operate, and

maintain the system.

[

]

Richardson, 432 Mich at 385-387 (emphasis added; citations omit-

ted).

Id. at 383.

The term “refuse system” means “disposal, including all equipment

and facilities for storing, handling, processing, and disposing of refuse,

including plants, works, instrumentalities, and properties, used or useful

in connection with the salvage or disposal of refuse and used or useful in

the creation, sale, or disposal of by-products, including rock, sand, clay,

gravel, or timber, or any portion or any combination thereof.” MCL

123.731(e).

MCL 123.737.

2010] D

EXTROM V

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419

Counties thus have statutory authority to own and

run waste disposal facilities.

Certain plaintiffs nevertheless contend that defen-

dants’ violations of MCL 324.11509 and MCL

324.11512(2), which are parts of the Natural Resources

and Environmental Protection Act (NREPA),

divested

defendants of their authority to operate the landfill.

Both of these NREPA sections prohibit the operation of

an unlicensed landfill, as defendants did in this case.

However, neither of these NREPA provisions evinces a

legislative intent to withdraw defendants’ authority to

operate a “refuse system” for a violation of the environ-

mental protection laws. Therefore, the trial court cor-

rectly concluded that a landfill operating in violation of

state licensing and environmental protection laws does

not constitute an ultra vires activity.

C. THE PROPRIETARY FUNCTION EXCEPTION

TO GOVERNMENTAL IMMUNITY

As explained above, defendants’ operation of a land-

fill constitutes a governmental function, for which a

governmental agency is generally immune.

However,

there are exceptions to the rule of governmental immu-

nity, including the proprietary function exception,

which provides, in pertinent part:

The immunity of the governmental agency shall not apply

to actions to recover for bodily injury or property damage

arising out of the performance of a proprietary function as

defined in this section. Proprietary function shall mean any

activity which is conducted primarily for the purpose of

producing a pecuniary profit for the governmental agency,

excluding, however, any activity normally supported by taxes

or fees.

[

]

MCL 324.101 et seq.

MCL 691.1407(1); Coleman, 456 Mich at 619.

MCL 691.1413 (emphasis added).

420 287 M

ICH

406 [Mar

In Hyde v Univ of Mich Bd of Regents,

the Supreme

Court found that this definition is “quite specific and

needs no interpretation.” The Court explained that

before an activity is deemed a proprietary function, it

must satisfy two tests: “1) [t]he activity must be con-

ducted primarily for the purpose of producing a pecu-

niary profit, and 2) [t]he activity cannot normally be

supported by taxes or fees.”

1. PECUNIARY PROFIT PURPOSE

Defendants argue that the landfill was operated

primarily to meet its citizens’ waste disposal needs, not

primarily to make a profit.

In determining whether the agency’s primary pur-

pose is to produce a pecuniary profit, a court must first

consider “whether a profit is actually generated,” and

second must consider “ ‘where the profit generated by

the activity is deposited and how it is spent.’ ”

In Hyde, the Supreme Court noted that the propri-

etary function exception turns on the agency’s motive;

it does not require that the activity “actually generate a

profit....”

The Court explained that “[i]f the avail-

ability of immunity turned solely upon an examination

of the ledgers and budgets of a particular activity, a

fiscally responsible governmental agency would be ‘re-

warded’ with tort liability for its sound management

decisions.”

“Such a rule could discourage implemen-

tation of cost-efficient measures and encourage deficit

Hyde v Univ of Mich Bd of Regents, 426 Mich 223, 257; 393 NW2d

847 (1986).

Id. at 258 (emphasis in original).

Coleman, 456 Mich at 621.

Hyde, 426 Mich at 258.

Id.

2010] D

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421

spending.”

It would also be difficult to implement, in

that a particular activity could generate a profit one

year and operate at a loss the next.

Conversely, “[t]he

existence of a profit is not an irrelevant consider-

ation....”

Consistently operating at a loss may be

evidence that the primary purpose of the activity is

something other than to make a profit, while consis-

tently making a profit may be evidence of intent to

make a profit.

“However, § 13 permits imposition of

tort liability only where the primary purpose is to

produce a pecuniary profit.”

“It does not penalize a

governmental agency’s legitimate desire to conduct an

activity on a self-sustaining basis.”

“Another relevant consideration is where the profit

generated by the activity is deposited and how it is

spent.”

If the profit is deposited in a general fund and

used to finance unrelated activities, this could indicate

that the activity was intended as “a general revenue-

raising device.”

Conversely, “[i]f the revenue is used

only to pay current and long-range expenses involved in

operating the activity, this could indicate that the

primary purpose of the activity was not to produce a

pecuniary profit.”

The evidence in this case showed that until 1989, all

garbage that the landfill processed came from Wexford

County. Since 1990, approximately six percent of the

Id.

Id. at 258-259 (emphasis in original).

Id. at 259.

Id.

422 287 M

ICH

406 [Mar

garbage that the landfill receives comes from neighbor-

ing Missaukee County. The percentage of the landfill’s

yearly operating revenue attributable to Missaukee

County waste has fluctuated from 0.6 percent the first

year (1990) to a high of 13.2 percent in 2005, during a

special project.

The landfill has been making a profit since 1984. The

landfill’s profits and interest on those profits were

deposited into a landfill fund. Between 1989 and 2000,

the fund’s unrestricted assets increased from $948,894

to $13,710,372. Through 1999, these funds were not

used for any purpose unrelated to the landfill. But

between 2000 and 2005, the landfill transferred ap-

proximately $2.7 million out of the landfill fund for uses

unrelated to the landfill. As the following chart shows,

for the first three years, the amounts of these unrelated

transfers were approximately half of the landfill’s an-

nual net earnings plus interest, until the landfill started

losing money. The unrelated transfers continued for

three years after the landfill began losing money, but

stopped in 2006.

Year Net Earnings

(operating

earnings)

Interest

(non-

operating

earnings)

Net Earnings

plus Interest

Unrelated

Transfers

Percentage

(of net

Earnings

plus

Interest)

2000 379,440 725,157 1,155,869 752,175 65.0%

2001 428,376 368,329 1,153,533 566,559 49.1%

2002 262,554 256,077 630,883 395,091 62.6%

2003 (630,521) 264,692 (374,444) 339,713 N/A

2004 (1,777,797) 288,982 (1,513,105) 334,015 N/A

2005 (3,193,570) 205,130 (2,904,588) 330,000 N/A

2010] D

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423

The evidence shows that in approximately 1990, the

landfill began generating and accumulating substantial

profits, although no monies were spent on unrelated

projects. However, from 2000 until 2005, substantial sums

were transferred out of the landfill fund to finance unre-

lated projects. Additionally, statements from various

county officials raise questions about the motivation be-

hind operation of the landfill. Plaintiffs cite numerous

instances of county officials making statements that indi-

cate a profit-making motive. The evidence raises a ques-

tion concerning whether defendants’ motivation changed

over time and supports an inference that since 2000,

perhaps earlier, the landfill was operated for the primary

purpose of making a profit. Further, contrary to defen-

dants’ contentions, the mere fact that defendants did not

spend the primary portion of the landfill’s profits on

unrelated expenses is not conclusive proof that defendants

were not nevertheless operating the landfill primarily for

the purpose of producing a pecuniary profit.

Thus, in considering the motions for summary dis-

position under MCR 2.116(C)(10), we conclude that the

trial court did not err by concluding that there was a

question of material fact concerning whether the land-

fill was being operated for the primary purpose of

making a pecuniary profit, including whether that

motive changed over time.

2. ACTIVITY NORMALLY SUPPORTED BY TAXES OR FEES

The Supreme Court has stated that even if an activ-

ity is conducted for the primary purpose of making a

profit, the proprietary function exception does not

apply if the activity is normally supported by taxes or

fees.

“When deciding whether an activity satisfies the

Coleman, 456 Mich at 622 n 8; Hyde, 426 Mich at 259-260.

424 287 M

ICH

406 [Mar

second part of the proprietary function test, it is impor-

tant to consider the type of activity under examina-

tion.”

In Coleman, the city of Riverview accepted garbage,

not just from its residents, but from numerous other

sources, including Wayne County and the province of

Ontario, Canada.

The Coleman Court found that “[a]n

enterprise of such vast and lucrative scope is simply not

normally supported by a community the size of the city

of Riverview [with 14,000 residents] either through

taxes or fees.”

The Court added:

The fact that the city charges fees to garbage haulers

unloading refuse into its landfill does not alter this conclu-

sion. Any governmental activity must exact a fee if it is to

produce a pecuniary profit. If imposition of a use fee like

Riverview’s would suffice to defeat the proprietary func-

tion exception to governmental immunity, almost no city

activity would subject a city to liability. That could not have

been the intention of the Legislature.

[

]

The Court concluded that the proprietary function test

had been met and that the city of Riverview was not

immune from tort liability.

Here, it is undisputed that fees exclusively support

the landfill. However, as Coleman states, that fact alone

is not sufficient to avoid the proprietary function excep-

tion. Defendants argue that the trial court erred when,

in examining the issue whether an activity is “normally

supported by taxes or fees,” it sought evidence of how

other communities support their landfills. In applying

this part of the proprietary function test, however, the

Coleman, 456 Mich at 622.

Id. at 616-617, 622-623.

Id. at 623.

Id. (emphasis added).

Id. at 623-624.

2010] D

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425

Coleman Court compared the scope and profitability of

the landfill in relation to the size of the community.

Thus, the Court looked at how other communities

supported their landfills, rather than merely the fund-

ing history of the activity in question. Therefore, under

Coleman, the trial court must consider the scope of

defendants’ landfill in relation to the size of the com-

munity, its profitability, and how other communities of

similar size support their landfills.

Thus, in considering the motions for summary dis-

position under MCR 2.116(C)(10), we conclude that the

trial court did not err by finding that there was a

question of fact whether defendants’ operation of the

landfill was subject to the proprietary function excep-

tion to governmental immunity.

D. CONTAMINATION

Defendants argue that the trial court erred by con-

sidering the affidavit of certain plaintiffs’ expert Chris-

topher Grobbel in finding that a question of material

fact existed with regard to when the alleged contami-

nation occurred. Defendants contend that Grobbel’s

affidavit should not have been considered because the

reliability standards required by MRE 702 were not

satisfied.

The evidentiary rule that governs expert testimony,

MRE 702, provides:

If the court determines that scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experi-

ence, training, or education may testify thereto in the form

of an opinion or otherwise if (1) the testimony is based on

Id. at 623.

426 287 M

ICH

406 [Mar

sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of

the case.

[

]

Further, MCR 2.116(G)(6) provides that “[a]ffida-

vits... offered in support of or in opposition to a

motion based on subrule (C)(1)–(7) or (10) shall only be

considered to the extent that the content or substance

would be admissible as evidence to establish or deny the

grounds stated in the motion.” However, in addressing

this requirement, the Michigan Supreme Court in

Maiden v Rozwood,

approvingly quoted Winskunas v

Birnbaum,

which explained:

“The evidence need not be in admissible form; affidavits

are ordinarily not admissible evidence at a trial. But it

must be admissible in content....Occasional statements

in cases that the party opposing summary judgment must

present admissible evidence... should be understood in

this light, as referring to the content or substance, rather

than the form, of the submission.”

Moreover, MCR 2.119(B)(1) provides:

If an affidavit is filed in support of or in opposition to a

motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence

establishing or denying the grounds stated in the motion;

and

witness, can testify competently to the facts stated in the

affidavit.

See also Craig v Oakwood Hosp, 471 Mich 67; 684 NW2d 296 (2004);

Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004).

Maiden, 461 Mich at 124 n 6.

Winskunas v Birnbaum, 23 F3d 1264, 1267-1268 (CA 7, 1994)

(citations omitted; original emphasis in Winskunas omitted).

2010] D

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427

Thus, there is no requirement that an expert’s qualifi-

cations and methods be incorporated into an affidavit

submitted in support of, or opposition to, a motion for

summary disposition. Rather, the content of the affida-

vits must be admissible in substance, not form.

And

the requirements of MRE 702 are foundational to the

admission of the expert’s testimony at trial. Thus, it is

significant that defendants here do not attack the

admissibility of the content of Grobbel’s affidavit, only

its foundation. As MCR 2.119(B)(1)(c) provides, the

affidavit need only show that the affiant, if sworn as a

witness, can testify competently to the facts stated in

the affidavit. Whether Grobbel will ultimately meet the

MRE 702 requirements to be sworn as a witness is a

matter reserved for trial. Thus, in considering the

motions for summary disposition under MCR

2.116(C)(10), we conclude that the trial court did not

err by considering Grobbel’s affidavit in ruling that a

genuine issue of material fact existed concerning when

the contamination occurred.

III. MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7)

A. STANDARD OF REVIEW

Of crucial importance here is that defendants also

brought their motion for summary disposition under

MCR 2.116(C)(7). MCR 2.116(C)(7) provides that a

motion for summary disposition may be raised on the

ground that a claim is barred because of immunity

granted by law. When reviewing a motion under MCR

2.116(C)(7), this Court must accept all well-pleaded

factual allegations as true and construe them in favor of

the plaintiff, unless other evidence contradicts them.

MCR 2.116(G)(6); Maiden, 461 Mich at 124 n 6.

Maiden, 461 Mich at 119; Guerra, 222 Mich App at 289.

428 287 M

ICH

406 [Mar

If any affidavits, depositions, admissions, or other docu-

mentary evidence are submitted, the court must con-

sider 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 devel-

opment could provide a basis for recovery, dismissal is

inappropriate.

B. THE TRIAL COURT’S OPINION

In resolving the motions for summary disposition,

the trial court found that summary disposition must be

denied because there existed questions of fact that

would best be resolved at a trial. Specifically, with

respect to the pecuniary-profit-purpose test of the pro-

prietary function exception, the trial court concluded

that “[t]rial testimony of the people who made these

decisions [regarding the landfill’s purpose] is necessary

to accurately adjudicate this issue.”

Further, with

respect to the question whether the landfill is the type

of activity normally supported by taxes or fees, the trial

court concluded that “[t]his question is unanswered by

the documentary record and presents a genuine issue of

material fact that must be addressed at trial.”

The

trial court made no particular distinction between MCR

2.116(C)(7) and MCR 2.116(C)(10), and did not state or

imply that it recognized that a motion under MCR

MCR 2.116(G)(5); Maiden, 461 Mich at 119; Guerra, 222 Mich App at

289.

Guerra, 222 Mich App at 289.

Id.

Emphasis added.

2010] D

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429

2.116(C)(7) ultimately presents a question of law for the

court to decide rather than a question of fact within the

jury’s province.

C. GOVERNMENTAL IMMUNITY AS A QUESTION OF LAW

As we have stated above, when reviewing a motion for

summary disposition brought under MCR 2.116(C)(10),

the court must examine the documentary evidence pre-

sented and, drawing all reasonable inferences in favor of

the nonmoving party, determine whether a genuine issue

of material fact exists.

If the court does determine that

a genuine issue of material fact exists, then the motion

must be denied and the issues are left to a fact-finder to

resolve at a trial. Thus, we have stated, the trial court

did not err by finding that there were unresolved

questions of fact as to whether defendants’ operation of

the landfill was subject to the proprietary function

exception to governmental immunity. And we agree

with the trial court that the inconclusive nature of the

evidence requires further inquiry and clarification.

However, to the extent that the trial court envisioned

that such further inquiry and clarification would be

arrived at during a trial, with either the court sitting as

a finder of fact or a jury serving the same function, we

disagree. A trial is not the proper remedial avenue to

take in resolving the factual questions under MCR

2.116(C)(7) dealing with governmental immunity. In-

deed, the crux of the case is the determination of the

threshold issue whether governmental immunity pro-

tects defendants’ conduct or whether that conduct fell

outside the immunity protection through application of

the proprietary function exception.

MCR 2.116(G)(5); Maiden, 461 Mich at 120; Quinto, 451 Mich at

361-362; see also Smith, 460 Mich at 454-455&n2.

430 287 M

ICH

406 [Mar

Although courts should start with the pleadings

when reviewing a motion brought under MCR

2.116(C)(7), courts must also consider any affidavits,

depositions, admissions, or other documentary evidence

that the parties submit to determine whether there is a

genuine issue of material fact.

“[T]he trial court [is]

obligated to evaluate the specific conduct alleged to

determine whether a valid exception exists.”

If no

facts are in dispute, and if reasonable minds could not

differ regarding the legal effect of the facts, the question

whether the claim is barred is an issue of law for the

court.

But if a question of fact exists so that factual

development could provide a basis for recovery, caselaw

states that dismissal without further factual develop-

ment is inappropriate.

And it is under this latter

circumstance—where there are questions of fact neces-

sary to resolve the ultimate issue whether governmen-

tal immunity applies—that we believe the (C)(7) proce-

dure diverges from the (C)(10) procedure.

As we stated above, under MCR 2.116(C)(10), if the

court does determine that a genuine issue of material

fact exists, then it must deny the motion and leave the

issues of fact to a fact-finder to resolve at a trial. But we

must reconcile this procedure with the fact that appli-

cation of the proprietary function exception to govern-

mental immunity remains a question of law for the

court.

MCR 2.116(G)(5); Maiden, 461 Mich at 119; Coleman, 456 Mich at

618; Herman v Detroit, 261 Mich App 141, 143-144; 680 NW2d 71 (2004);

Guerra, 222 Mich App at 289.

Walsh v Taylor, 263 Mich App 618, 624; 689 NW2d 506 (2004).

Guerra, 222 Mich App at 289.

Id.

Briggs v Oakland Co, 276 Mich App 369, 371; 742 NW2d 136 (2007);

Laurence G Wolf Capital Mgt Trust v City of Ferndale, 269 Mich App 265,

270; 713 NW2d 274 (2005).

2010] D

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431

Our review of relevant caselaw fails to definitively

resolve this dilemma.

However, we conclude that ca-

selaw supports a remand for an evidentiary hearing as

an acceptable remedy under the circumstance. In Lau-

rence G Wolf Capital Mgt Trust v City of Ferndale,

the

trial court held that “further factual development was

required” with regard to the defendants’ motion for

summary disposition on the ground of governmental

immunity. And in Hyde, a trial court conducted a “full

evidentiary hearing” and made “findings of fact and

law” to determine whether the defendant’s conduct

constituted a proprietary function.

Accordingly, we instruct the trial court to hold an

evidentiary hearing for the purpose of obtaining such

factual development as is necessary to determine

whether defendants’ operation of the landfill was sub-

ject to the proprietary function exception to govern-

mental immunity. On the basis of the further factual

development presented at that hearing, if the trial court

determines that defendants’ operation of the landfill is

subject to the proprietary function exception to govern-

mental immunity as a matter of law, then it should deny

In Delaney v Mich State Univ, unpublished opinion per curiam of the

Court of Appeals, issued March 16, 1999 (Docket No. 202391), in

considering a motion brought under MCR 2.116(C)(7) and (C)(10), a

panel of this Court concluded that the “plaintiff ha[d] submitted allega-

tions and proofs sufficient to withstand [the] defendant’s motion for

summary disposition on the basis of governmental immunity.” Accord-

ingly, the panel reversed and remanded “for proceedings consistent with

this opinion.” However, the panel did not specifically indicate what such

proceedings should actually entail, that is, a trial or merely an eviden-

tiary hearing.

Laurence G Wolf, 269 Mich App at 268; see also Huron Tool &

Engineering Co v Precision Consulting Servs, 209 Mich App 365, 377; 532

NW2d 541 (1995) (“However, if a material factual dispute exists such that

factual development could provide a basis for recovery, summary dispo-

sition is inappropriate.”).

Hyde, 426 Mich at 255.

432 287 M

ICH

406 [Mar

defendants’ summary disposition motion under MCR

2.116(C)(7) and proceed to trial on the substance of

plaintiffs’ claims. However, if the trial court determines

that defendants’ operation of the landfill is not subject

to the proprietary function exception to governmental

immunity as a matter of law, then the trial court should

grant defendants’ summary disposition motion under

MCR 2.116(C)(7).

We affirm, but remand for proceedings consistent

with this opinion. We do not retain jurisdiction.

2010] D

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PRACTICAL POLITICAL CONSULTING, INC v

SECRETARY OF STATE

Docket No. 291176. Submitted November 10, 2009, at Lansing. Decided

March 9, 2010, at 9:05 a.m.

Practical Political Consulting, Inc., brought an action in the

Ingham Circuit Court, Joyce A. Draganchuk, J., against the

Secretary of State and the office of the Secretary of State,

alleging that the defendants wrongfully denied plaintiff’s March

26, 2008, request under the Freedom of Information Act

(FOIA), MCL 15.231 et seq., for “a copy of all vote history of the

[January 15, 2008] presidential primary including which ballots

each voter selected (D[emocratic]) or R[epublican]).” Defen-

dants denied the request on the bases that the party preference

information collected during the primary was not a public

record as defined by FOIA and was exempt from disclosure

under FOIA’s privacy exemption, MCL 15.243(1)(a), and statu-

tory exemption, MCL 15.243(1)(d). The trial court denied

defendants’ motion for summary disposition and entered a

judgment against defendants. Defendants appealed, asserting

that the records sought were exempt from disclosure under the

privacy and statutory exemptions from disclosure of FOIA.

Defendants did not assert that the records sought were not

public records.

The Court of Appeals held:

1. MCL 168.615c(1), as amended by 2007 PA 52, required at

the time of the 2008 presidential primary election that, in order to

vote, an elector must indicate in writing at the time the elector

appears to vote which participating political party ballot the

elector wished to vote.

2. MCL 168.615c(3), as added by 2007 PA 52, provided at the

time of the 2008 presidential primary election that the Secretary of

State was required to develop a procedure for city and township

clerks to use when keeping a “separate record” at the primary that

contained the printed name, address, and qualified voter file

number of each elector and the participating political party ballot

selected by the elector.

3. 2007 PA 52, enacting § 2, repealed the 1995 FOIA provision

434 287 M

ICH

434 [Mar

that provided in MCL 168.495a(1), as amended by 1995 PA 213, for

the removal from the precinct registration file, the master regis-

tration file of the elector, and the precinct registration list an

elector’s prior declaration of a party preference or no party

preference, and which provided in MCL 168.495a(2), as amended

by 1995 PA 213, that beginning on November 29, 1995, a person

making a request under FOIA was not entitled to receive a copy of

a portion of a voter registration record that contains a declaration

of party preference or no party preference by an elector and a clerk

or any other person shall not release a copy of a portion of a voter

registration record that contains a declaration of party preference

or no party preference of an elector.

4. Although the changes to the election law adopted in 2007

for the 2008 presidential primary repealed the 1995 FOIA

provision and substituted an exemption from disclosure for the

information acquired or in the possession of a public body that

indicated which participating political party ballot an elector

selected at a presidential primary, after the 2008 primary, a

federal court declared part of 2007 PA 52 unconstitutional.

Because 2007 PA 52 contained a nonseverability clause, 2007 PA

52 became null and void and the 1995 FOIA provision came back

into effect.

5. Under MCL 168.495a(2), as amended by 1995 PA 213, the

questions presented by plaintiff’s request are, first, was the

March 26, 2008, FOIA request a request for a copy of an

identifiable public record specifically described and exempted

from disclosure under MCL 168.495a(2), as amended by 1995

PA 213? Second, even if the March 26, 2008, FOIA request was

not a request for a copy of indentifiable public record specifi-

cally described and exempted from disclosure under amended

§ 495a(2), was the information in that public record specifically

described and exempted from disclosure under amended

§ 495a(2)?

6. The public records sought by plaintiff are the “separate

record[s]” created under MCL 168.615c(3), as added by 2007 PA

52, that contain the printed name, address, and qualified voter

file number of each elector and the participating political party

ballot selected by that elector at the 2008 presidential primary.

It is clear that these “separate record[s]” are not specifically

described and exempted from disclosure under § 495a(2), as

amended by 1995 PA 213, which refers to “voter registration

record[s].” The “voter registration record[s]” that amended

§ 495a(2) exempts from disclosure are completely distinct from

2010] P

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435

the “separate record[s]” kept under § 615c(3) of 2007 PA 52 and

are not exempt from disclosure under § 495a(2) as amended by

1995 PA 213.

7. The information kept under § 615c(3) of 2007 PA 52 is not

an elector’s declaration of party preference, or no party preference.

And it is only such declarations of party preference that § 495a(2),

as amended by 1995 PA 213, exempts from disclosure. The only

“information” kept under § 615c(3) of 2007 PA 52 is “information”

regarding the political party ballots, along with the printed name,

address, and qualified voter file number of each elector, that

electors selected in order to vote in the 2008 presidential primary.

Such selections by electors are not declarations of party prefer-

ence. Amended § 495a(2) does not exempt from disclosure the

“information” regarding party preference contained in the “sepa-

rate record[s]” kept under § 615c(3) of 2007 PA 52 because that

information is not a “declaration of party preference,” or no

preference. Therefore, § 13(1)(d) of FOIA, MCL 15.243(1)(d), does

not apply to that information because no statutory exemption

covers it. A declaration of party preference under amended

§ 495a(2) is not the same as a selection of a ballot under § 615c(3)

of 2007 PA 52.

8. A two-pronged inquiry must be engaged in to ascertain

whether the privacy exemption, MCL 15.243(l)(a), is applicable.

First, it must be determined whether the information sought is “of

a personal nature.” Second, it must be determined whether the

“public disclosure of the information would constitute a clearly

unwarranted invasion of an individual’s privacy.” The future use

of the information is irrelevant to determining whether the

privacy exemption exists. Only the circumstances known to the

public body at the time of the request are relevant to whether a

FOIA exemption precludes disclosure.

9. The thrust of the sacrosanct concept of ballot secrecy is to

protect from disclosure the identity of the candidates for which an

elector voted. The disclosure of the ballot, Republican, Democratic,

or other, that an elector voted in the 2008 presidential primary is

not the disclosure of the candidate for which that elector voted.

The indication of a ballot that an elector wished to vote in the 2008

presidential primary election is not information of a personal

nature under MCL 15.243(1)(a).

10. The inquiry under MCL 15.243(1)(a) whether the disclo-

sure of the information would constitute a “clearly unwarranted”

invasion of an individual’s privacy requires the Court of Appeals to

balance the public interest in disclosure against the interest that

the Legislature intended the exemption to protect. The relevant

436 287 M

ICH

434 [Mar

public interest in disclosure here is the extent to which disclosure

would serve the core purpose of FOIA, which is contributing

significantly to the public understanding of the operations or

activities of the government. Here, there is a strong public interest

in disclosure. Even if the indication of a ballot that an elector

wished to vote in the 2008 presidential primary election were to be

viewed as being of a personal nature, its disclosure, when weighed

against the public interest in disclosure, would not be a clearly

unwarranted invasion of that elector’s privacy.

Affirmed.

K. F. K

ELLY

, J., dissenting, stated that the information

collected during the 2008 presidential primary is information

protected by statute and its disclosure would constitute a clearly

unwarranted invasion of an individual’s privacy. Therefore, the

information is exempt from disclosure under MCL 15.243(1)(a)

and (d). The judgment of the trial court should be reversed. The

FOIA’s statutory exemption, MCL 15.243(1)(d), protects from

disclosure records that are specifically described by statute or

information that is specifically described by statute. The Leg-

islature intended to accomplish two things through the enact-

ment of the 1995 FOIA provision, MCL 168.495a, as amended by

1995 PA 213. First, under MCL 168.495a(1), it permits the

removal of all party preference information previously cap-

tured. Second, MCL 168.495a(2) prohibits the disclosure of

party preference information in the future, not limited to

political preference information collected under the prior law.

Therefore, the protection from disclosure provided by subsec-

tion (2) applies to all portions of voter registration records

containing a party declaration, including those records created

in the future. The information collected during the 1988-1995

closed primaries and during the 2008 primary, although col-

lected by a different procedure, is the same. An elector wishing

to vote was required to “proclaim” the party’s primary he or she

wished to vote in. In both instances, voters made a “declara-

tion” of party preference. The phrase “declaration of party

preference” encompasses an elector’s selection of a party’s

ballot. The requested information is protected from disclosure

by MCL 168.495a(2), as amended by 1995 PA 213, and is

therefore exempt under the FOIA’s statutory exemption, MCL

15.243(1)(d). The information sought is information of a per-

sonal nature that implicates two separate privacy interests: an

individual’s privacy interest in his or her political convictions

and an individual’s privacy interest in his or her personal

identifying information. Voters’ names and home addresses,

2010] P

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when coupled with their party preferences in the 2008 primary

election, is personal information that is intimate and private,

and is undoubtedly of a “personal nature.” The public’s interest

in the disclosure of voters’ names and addresses coupled with

their party preference information is negligible and the disclo-

sure of this information in this form is not necessary to shed

light on the government’s operations. Weighing the virtually

nonexistent public interest in disclosure against electors’ inter-

ests in controlling their personal information dictates the

conclusion that disclosure would be an unwarranted invasion of

voters’ privacy. The public’s interest in disclosure is outweighed

by the privacy interest the Legislature intended to protect

under MCL 15.243(1)(a).

1. E

LECTIONS —

ORDS AND

HRASES —

EPARATE

ECORDS —

OTER

EGISTRA-

TION

ECORDS

The “separate record[s]” created under MCL 168.615c(3), as added

by 2007 PA 52, which contain the printed name, address, and

qualified voter file number of each elector and the participating

political party ballot selected by that elector at the 2008 presiden-

tial primary, are public records that are not specifically described

and exempted from disclosure under MCL 168.495a(2), as

amended by 1995 PA 213; the “voter registration record[s]” that

amended § 495a(2) exempts from disclosure are completely dis-

tinct from the “separate records[s]” kept under § 615c(3) of 2007

PA 52.

2. E

LECTIONS —

ORDS AND

HRASES —

NFORMATION —

ECLARATIONS OF

ARTY

REFERENCE

The “information” kept under MCL 168.615c(3), as added by 2007

PA 52, following the 2008 presidential primary election that

includes the printed name, address, and qualified voter file num-

ber of each elector and the participating political party ballot

selected by the elector is not an elector’s “declaration of party

preference” or no party preference under MCL 168.495a(2), as

amended by 1995 PA 213.

3. E

LECTIONS —

REEDOM OF

NFORMATION

CT —

XEMPTIONS FROM

ISCLOSURE

—

RIVACY

XEMPTION

The disclosure of information regarding which participating political

party ballot an elector voted in the 2008 presidential primary is

not the disclosure of personal information for purposes of the

privacy exemption to disclosure of the Freedom of Information

Act, MCL 15.243(1)(a); even if it were the disclosure of personal

438 287 M

ICH

434 [Mar

information, the disclosure would not constitute a clearly unwar-

ranted invasion of an individual’s privacy for purposes of the

privacy exemption.

Brookover, Carr & Schaberg, P.C. (by Diane S. Carr),

for plaintiff.

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

Solicitor General, and Susan Leffler, Denise C. Barton,

and Ann M. Sherman, Assistant Attorneys General, for

defendants.

Amicus Curiae:

Foster, Swift, Collins & Smith, P.C. (by Eric E.

Doster), for the Michigan Republican Party.

Before: B

ORRELLO

,P.J., and W

HITBECK

and K. F. K

ELLY

JJ.

HITBECK

, J. This appeal concerns the provisions of

the Freedom of Information Act (FOIA) relating to

public records.

But the central question here is not the

availability of public records. Rather it is whether the

disclosure, or concealment, of these records will lead to,

or detract from, the public’s ability to hold its elected

and appointed public officials accountable for carrying

out the law. The Secretary of State (the Secretary) and

her office would have us hold that these records are

statutorily exempt from disclosure and that they are of

such a “personal nature” that their public disclosure

would constitute a “clearly unwarranted invasion” of

an individual’s privacy. We cannot, and do not, agree.

The records here relate to the 2008 presidential

primary election, in which there was to be a “separate

record” kept containing the printed name, address, and

MCL 15.231 et seq.

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qualified voter file number of each elector and the

“participating political party” ballot selected by that

elector. The main “participating” political parties were

the Democratic Party and the Republican Party. The

2008 presidential primary in Michigan was conducted

amid a swirl of controversy, charges, and counter-

charges. Ultimately, a federal court found the act that

authorized that primary to be unconstitutional on equal

protection grounds. But these complexities should not

cloud the basic issue. That issue here is whether we

should shield from public disclosure the “separate

records” that contain information as to which ballot—

not which candidate—each voter selected in the 2008

presidential primary. We do not view FOIA and the

cases interpreting it as providing such a shield. We

therefore affirm the decision of the trial court.

I. BASIC FACTS AND PROCEDURAL HISTORY

A. THE VARIOUS PRESIDENTIAL PRIMARY SYSTEMS

The law relating to recent presidential primary elec-

tions in Michigan falls into three categories:

• First, by statute from 1988 to 1995, Michigan had a

“closed” presidential primary system, with certain require-

ments regarding eligibility to vote in party presidential

primaries.

• Second, by statute from 1995 to 2007, Michigan had an

“open” presidential primary system that allowed voting in

party primaries without the eligibility requirements that

the former election law imposed.

• Third, by statute in 2008, Michigan had what might

reasonably be called a “semi-open” presidential primary,

with certain requirements—less onerous than those that

the law imposed in 1988 to 1995—regarding eligibility to

vote in a party’s presidential primary.

More specifically, the law in these three categories

contained the following provisions:

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1988-1995 Closed

Presidential Primary

System: Declaration of

Party Preference By

Elector

A “registration affidavit” kept at the township,

city, or village level was required to contain a space

in a presidential primary election for the “elector to

declare a party preference or that the elector has no

party preference.”

Even if currently registered to

vote, an elector would not be eligible to vote in a

presidential primary election unless the elector

“declare[d] in writing . . . a party preference at least

30 days before the presidential primary election.”

Thus, only those electors who declared a party

preference 30 days before the presidential primary

election could vote for the candidates in any of the

parties’ respective presidential primaries.

1995-2007 Open

Presidential Primary

System: No Declaration of

Party Preference By

Elector

The “registration affidavit” was no longer re-

quired to contain the space for an elector to declare

a party preference 30 days (or any other period)

before the presidential primary election.

Thus,

any elector, who had otherwise completed a valid

registration affidavit could vote for the candidates

in any of the parties’ respective presidential prima-

ries.

2008 Semi-Open

Presidential Primary:

Indication of Which Party

Ballot Elector Wished to

Vote

In order to vote in a presidential primary, an

elector was required to “indicate in writing, on a

form prescribed by the secretary of state, which

participating political party ballot he or she wishes

to vote when appearing to vote at a presidential

primary.”

Thus, only the electors who indicated,

at the time they appeared to vote, which participat-

ing political party ballot “he or she wishes to vote”

could vote for the candidates in any of the parties’

respective presidential primaries.

There is a significant difference between the three

categories. Under the 1988-1995 closed primary system,

an elector had to “declare” a “party preference” 30 days in

advance in order to vote in a presidential primary. Under

the 1995-2007 open primary system, by contrast, there

were no requirements regarding party preference or ballot

selection, by declaration or otherwise, and any qualified

elector could vote in any of the parties’ respective presi-

dential primaries. In 2008, an elector was not required to

“declare” a “party preference” but rather that elector was

required to “indicate” which “participating political party

ballot he or she wish[ed] to vote....” And the elector

MCL 168.495(1)(k), as amended by 1988 PA 275.

MCL 168.495(2)(c), as amended by 1998 PA 275; MCL 168.523(3), as

amended by 1988 PA 275.

MCL 168.495, as amended by 1995 PA 87.

MCL 168.615c(1), as added by 2007 PA 52.

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could indicate his or her choice of ballot when he or she

appeared at the polling place to vote in the presidential

primary, rather than 30 days in advance.

B. RECORD-KEEPING REQUIREMENTS

The three categories also had significantly different

record-keeping requirements. In summary, the law in

these three categories contained the following provisions:

1988-1995

Closed

Presidential

Primary

System:

Declaration

of Party

Preference

By Elector

The clerk of each township, city, and village was required to

provide blank forms, designated as “registration cards,” to be used

in the registration of electors. These “registration cards” were to

include an affidavit designated as a “registration affidavit” to be

executed by the registrant.

This “registration affidavit” was to

contain:

4 the name of the elector;

4 the residence address, street and number or rural route and

box number, if any, of the elector;

4 the birthplace and birth date of the elector;

4 the driver’s license or state identification card number of the

elector, if available;

4 a statement that the elector was a citizen of the United States;

4 a statement that the elector at the time of completing the

affidavit, or on the date of the next election, was not less than 18

years of age;

4 a statement that the elector has or will have lived in the state

not less than 30 days before the election;

4 a statement that the elector has or will have established his or

her residence in the township, city, or village in which the elector is

applying for registration not less than 30 days before the next

election;

4 a statement that the elector is or will be a qualified elector of

the township, city, or village on the date of the next election;

4 a space in which the elector shall state the place of the elector’s

last registration; and, as mentioned above,

4 a space for the elector to declare a party preference or that the

elector has no party preference.

In addition, if authorized by the election commission of the city,

village, or township, the clerk of a city, village, or township was to

create a “registration list,” alphabetically arranged and containing

the name, address, date of birth of the elector and, “for the purpose

of voting in a presidential primary election, the party preference or

declaration of no party preference of theelector, if any.”

MCL 168.493, as amended by 1989 PA 142.

MCL 168.495(1)(a) through (k), as amended by 1988 PA 275.

MCL 168.501a, as amended by 1988 PA 275.

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1995-2007

Open

Presidential

Primary

System: No

Declaration

of Party

Preference

By Elector

As noted above, the “registration affidavit” no longer con-

tained the requirement that an elector declare a party preference

30 days (or any other period) before the presidential primary

election.

In 2005, the Legislature repealed MCL 168.501a,

relating to registration lists.

The other record-keeping re-

quirements remained the same.

2008

Semi-Open

Presidential

Primary:

Indication of

Which Party

Ballot

Elector

Wished

to Vote

The Secretary of State was required to “develop a procedure for

city and township clerks to use when keeping a separate record at

a presidential primary that contains the printed name, address, and

qualified voter file number of each elector and the participating

political party ballot selected by that elector at the presidential

primary.”

[11]

Thus, from 1988 to 1995, under the closed presidential

primary system, the registration affidavits contained ex-

tensive information about electors, including an elector’s

declaration of party preference (or no preference) for the

purpose of voting in a presidential primary. But from 1995

to 2007, under the open presidential primary system, the

elector’s declaration of party preference was no longer

kept in the registration affidavits. In 2008, however, there

was to be a “separate record” in the semi-open presiden-

tial primary that contained the printed name, address,

and qualified voter file number of each elector and the

selection of the participating political party ballot by that

elector.

MCL 168.495, as amended by 1995 PA 87.

2005 PA 71, enacting § 1.

MCL 168.615c(3), as added by 2007 PA 52.

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C. DISCLOSURE RESTRICTIONS

The law in these three categories also contained signifi

cantly different restrictions upon disclosure. In summary,

the law in these three categories contained the following

provisions:

1988-1995

Closed

Presidential

Primary

System:

Declaration

of Party

Preference

By Elector

There were no explicit restrictions on the disclosure of the public

records required to be kept.

1995-2007

Open

Presidential

Primary

System: No

Declaration

of Party

Preference

By Elector

In 1995, the Legislature adopted two explicit restrictions with

respect to the disclosure of public records required to be kept (the

1995 FOIA provision). First, in amended § 495a(1), the Legislature

provided:

If an elector declared a party preference or no party

preference as previously provided under this act for the

purpose of voting in a statewide presidential primary

election, a clerk or authorized assistant to the clerk

may remove that declaration from the precinct registra-

tion file and the master registration file of that elector

and the precinct registration list, if applicable.

[12]

Second, in amended § 495a(2), the Legislature provided:

Beginning on the effective date of the amendatory act

that added this sentence [November 29, 1995], a person

making a request under the freedom of information

act...isnot entitled to receive a copy of a portion of a

voter registration record that contains a declaration of

party preference or no party preference of an elector. Beg-

inning on the [same date], a clerk or any other person

shall not release a copy of a portion of a voter registra-

tion record that contains a declaration of party prefer-

ence or no party preference of an elector.

[13]

MCL 168.495a(1), as amended by 1995 PA 213.

MCL 168.495a(2), as amended by 1995 PA 213.

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2008

Semi-Open

Presidential

Primary:

Indication of

Which Party

Ballot

Elector

Wished to

Vote

In 2007, the Legislature repealed the 1995 FOIA provision

relating to the disclosure of public records required to be kept.

The Legislature then provided: “Except as otherwise provided in

this section, the information acquired or in the possession of a

public body indicating which participating political party ballot

an elector selected at a presidential primary is confidential,

exempt from disclosure under the freedom of information act...

and shall not be disclosed to any person for any reason.”

The

exception to this restriction was the requirement that the

Secretary “provide to the chairperson of each participating

political party a file of the records for each participating political

party described under subsection (3).”

This “subsection (3)”

file contained the “printed name, address, and qualified voter

file number of each elector and the participating political party

ballot selected by that elector at the presidential primary.”

As noted, the changes to the election law that the

Legislature adopted in 2007 for the 2008 presidential

primary repealed the 1995 FOIA provision and substi-

tuted an exemption from disclosure for the information

acquired or in the possession of a public body that indi-

cated which participating political party ballot an elector

selected at a presidential primary. However, after the 2008

primary, a federal court declared § 615c of 2007 PA 52

unconstitutional on equal protection grounds.

2007 PA

52 contained a nonseverability clause.

Thus, 2007 PA

52 became null and void in its entirety.

And, accord-

ingly, the repealer of the 1995 FOIA provision was also

struck down. As the parties agree, following this federal

court decision, Michigan election law, including the 1995

FOIA provision, reverted back to the position that it was

in before the Legislature enacted 2007 PA 52. Thus,

§ 495a(1), as amended by 1995 PA 213, and § 495a(2), as

amended by 1995 PA 213, came back into effect.

2007 PA 52, enacting § 2.

MCL 168.615c(4), as added by 2007 PA 52.

MCL 168.615c(6), as added by 2007 PA 52.

MCL 168.615c(3), as added by 2007 PA 52.

Green Party of Mich v Mich Secretary of State, 541 F Supp 2d 912, 924

(ED Mich, 2008).

2007 PA 52, enacting § 1.

See John Spry Lumber Co v Sault Savings Bank Loan & Trust Co,77

Mich 199, 200-202; 43 NW 778 (1889).

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D. PRACTICAL POLITICAL CONSULTING’S FOIA REQUEST

AND THE SECRETARY’S DENIAL

On March 26, 2008, plaintiff, Practical Political Con-

sulting, Inc., through Jon Hansen, faxed a handwritten

request to officials of the Secretary’s department request-

ing “a copy of all vote history of the 1/15/08 presidential

primary including which ballots each voter selected (D or

R).” Practical Political Consulting, again through Jon

Hansen, then sent a confirming e-mail requesting “all

voter history pertaining to that (the January 15, 2008

presidential primary) election including which ballot, D or

R, each voter selected.” Although the language of these

two requests is somewhat different, the substance is

essentially the same. Collectively, therefore, they consti-

tute the March 26, 2008 FOIA request.

On April 17, 2008, the Secretary, through FOIA Coor-

dinator Melissa Malerman, denied Practical Political Con-

sulting’s request. The Secretary set forth three grounds

for this denial. First, she asserted that the “party prefer-

ence information collected during the primary” was not a

public record as defined by FOIA. Second, the Secretary

asserted that the “party preference data” was exempt

from disclosure under § 13(1)(a) of FOIA, the privacy

exemption.

Third, the Secretary asserted that the “voter

preference information” was exempt from disclosure un-

der § 13(1)(d) of FOIA, the statutory exemption.

Importantly, the Secretary then went on to offer the

release of the names and addresses of those who voted

in the January 15, 2008, primary. She stated:

Although the nature of the Department’s duties have

changed as described above, and under the present circum-

stances the information you seek does not meet the defini-

MCL 15.243(1)(a).

MCL 15.243(1)(d).

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tion of a public record under the FOIA, the Department

does have in its possession the names and addresses of

those who voted on January 15, 2008. Despite the denial of

your request, in the spirit of cooperation, the Department

wishes to extend to you the opportunity to obtain this

information. By extending this opportunity, the Depart-

ment does not waive any legal positions that could be

asserted in the event of litigation.

E. THE FOIA LITIGATION

Practical Political Consulting then brought suit against

the Secretary, as allowed by FOIA.

The Secretary moved

for summary disposition, but the trial court denied her

motion and entered a judgment against her as well as

granted a request for injunctive relief enjoining her from

violating FOIA by “claiming that the records sought in

this case are not public records, or claiming exemptions to

the production of the records sought in this case under

§13(1)(a) and/or § 13(1)(d) of the FOIA.” However, the

trial court granted the Secretary’s request for a stay

pending appeal. The Secretary then appealed, asserting

that the “records requested by” Practical Political Con-

sulting were exempt under § 13(1)(a) of FOIA, the privacy

exemption, and § 13(1)(d) of FOIA, the statutory exemp-

tion. Significantly, the Secretary dropped her assertion

that the records Practical Political Consulting requested

were not public records.

II. THE STATUTORY EXEMPTIONS TO DISCLOSURE UNDER FOIA

A. STATUTORY PROVISIONS

Section 13(1)(d)

of FOIA sets out the “statutory

exemption” to disclosure under FOIA as follows:

MCL 15.240(1)(b).

MCL 15.243(1)(d).

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(1) A public body may exempt from disclosure as a public

record under this act any of the following:

***

(d) Records or information specifically described and

exempted from disclosure by statute.

The specific statutory exemption at issue here, the

1995 FOIA provision, is contained in amended § 495a of

the Michigan Election Law relating to restrictions on

disclosure.

As noted above, the 1995 FOIA provision

contained two new subsections. The first, amended

§ 495a(1),

is backward looking in that it pertains to

declarations of party preferences “as previously pro-

vided under this act....”This subsection is therefore

not at issue here.

The second subsection, amended § 495a(2), of the

1995 FOIA provision is, however, forward looking and

directly relevant. This subsection states:

Beginning on the effective date of the amendatory act

that added this sentence [November 29, 1995], a person

making a request under the freedom of information act...

is not entitled to receive a copy of a portion of a voter

registration record that contains a declaration of party

preference or no party preference of an elector. Beginning

on the [same date], a clerk or any other person shall not

release a copy of a portion of a voter registration record

that contains a declaration of party preference or no party

preference of an elector.

[

]

As noted above, 2007 PA 52 repealed the 1995 FOIA

provision. But a federal court later found § 615c of 2007

PA 52 to be unconstitutional. Because 2007 PA 52

MCL 168.495a, as amended by 1995 PA 213.

MCL 168.495a(1), as amended by 1995 PA 213.

MCL 168.495a(2), as amended by 1995 PA 213 (citation omitted).

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contained a nonseverability clause, the entire act, in-

cluding the repealer, was null and void. Therefore, the

1995 FOIA provision, including amended § 495a(2), is

now back in effect. Under that subsection, the question

before us is twofold. First, was the March 26, 2008,

FOIA request a request for a copy of an identifiable

public record specifically described and exempted from

disclosure under amended § 495a(2)? Second, even if

the March 26, 2008, FOIA request was not a request for

a copy of an identifiable public record specifically de-

scribed and exempted from disclosure under amended

§ 495a(2), was the information in that public record

specifically described and exempted from disclosure

under amended § 495a(2)?

B. THE “SEPARATE RECORD” AND AMENDED § 495a(2)

Section 1(1) of FOIA

titles it the “ ‘freedom of

information act,’ ” and it has been referred to in that

fashion since its enactment. However, in at least some

respects, it could more accurately be described as the

“access to public records act.” Indeed, § 3(1) of FOIA,

its basic enabling section, states:

Except as expressly provided in section 13, upon provid-

ing a public body’s FOIA coordinator with a written

request that describes a public record sufficiently to enable

the public body to find the public record, a person has the

right to inspect, copy, or receive copies of the requested

public record of the public body.

[

]

Here, the public records in question are the “separate

record[s]” created under § 615c(3) of 2007 PA 52

for

the 2008 presidential primary that contain the printed

MCL 15.231(1).

MCL 15.233(1) (emphasis added).

MCL 168.615c(3), as added by 2007 PA 52.

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name, address, and qualified voter file number of each

elector and the participating political party ballot se-

lected by that elector at the 2008 presidential primary.

The Secretary apparently now concedes that these

“separate record[s]” are public records and it is fairly

clear, although Practical Political Consulting’s request

was informally worded and not overly precise, that

these “separate record[s]” were also the public records

that Practical Political Consulting sought in its March

26, 2008, FOIA request.

But it is also equally clear that these “separate

record[s]” are not specifically described and exempted

from disclosure under amended § 495a(2). That subsec-

tion refers to “voter registration record[s].” Presum-

ably, these “voter registration record[s]” include “reg-

istration affidavits,” along with considerable other

information, declarations of party preference by elec-

tors

and, if applicable, “registration list[s]”

that also

include, along with other information, declarations of

party preference by electors.

The “voter registration record[s]” that amended

§ 495a(2) exempts from disclosure are completely dis-

tinct from the “separate record[s]” kept under § 615c(3)

of 2007 PA 52. And there is simply no way of reasonably

construing the statutory exemption from disclosure for

“voter registration record[s]” under amended § 495a(2)

as specifically describing and exempting the “separate

record[s]” kept under § 615c(3) of 2007 PA 52. These

“separate record[s]” are not “voter registration

record[s]” at all. Rather, they are records of the partici-

pating political party ballots—along with the printed

name, address, and qualified voter file number of each

See MCL 168.495(1)(a) through (k), as amended by 1988 PA 275.

See MCL 168.501a, as amended by 1987 PA 37.

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elector—that electors selected at their polling places in

order to vote in the 2008 presidential primary.

As such, these “separate record[s]” have nothing

whatever to do with voter registration. Again, they are

simply the names, addresses, and the qualified voter file

number of electors voting in the 2008 presidential

primary along with the participating political party

ballot selected by such electors in that presidential

primary. Because they are not “voter registration

record[s],” they are not exempt from disclosure under

amended § 495a(2).

C. THE “INFORMATION” KEPT UNDER § 615c(3) OF 2007 PA 52

There is, however, a more subtle point to be explored.

Section 13(1)(d) of FOIA, the provision that contains

the statutory exemption,

refers not only to records but

also to information, and there is an “or” between these

two words. Arguably, the information is a term to be

interpreted separately and distinctly from the term

records. Thus, it could be argued—and the dissent does

argue—that amended § 495a(2)

of the 1995 FOIA

provision prohibits the disclosure of all party preference

information in the future.

Section 13(1)(d) of FOIA clearly refers not only to

“[r]ecords” but also to “information.” But the “infor-

mation” kept under § 615c(3) of 2007 PA 52 is not an

elector’s “declaration of party preference” (or no pref-

erence). And it is only such declarations of party pref-

erence that amended § 495a(2)

exempts from disclo-

sure. On its face, the only “information” kept under

§ 615c(3) of 2007 PA 52 is “information” regarding the

MCL 15.243(1)(d).

MCL 168.495a(2), as amended by 1995 PA 213.

Id.

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participating political party ballots—along with the

printed name, address, and qualified voter file number

of each elector—that electors selected in order to vote in

the 2008 presidential primary. Such selections by elec-

tors are manifestly not declarations of party preference.

Perhaps the best way of illustrating this rather techni-

cal linguistic distinction is by example. Under the 1988-

1995 closed presidential primary system, in order to vote

in a presidential primary an elector had to declare a party

preference (or that the elector had no party preference).

Thus, in effect, the elector was required to declare that

he or she was a Democrat, a Republican, or a member of

another party. Alternatively, the elector could declare

no party preference. Only those electors who declared a

party preference 30 days before the presidential pri-

mary election could vote for the candidates in any of the

parties’ respective presidential primaries. Thus, with-

out a previous declaration, a Democrat, for example,

could not vote in the Democratic Party’s presidential

primary. The declaration of party preference, therefore,

had real meaning. It effectively excluded those persons

who were unwilling to make such a declaration at least

30 days in advance from voting in their respective

political parties’ presidential primaries.

By contrast, the “information” kept under § 615c(3)

of 2007 PA 52 is “information” regarding the partici-

pating political party ballots—along with the printed

name, address, and qualified voter file number of each

elector—that electors selected in order to vote in the

2008 presidential primary. Such “information” is not

the “declaration of party preference” (or no party

preference) that amended § 495a(2)

exempts from

disclosure.

MCL 168.495(1)(k), as amended by 1988 PA 275.

MCL 168.495a(2), as amended by 1995 PA 213.

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To illustrate, again by way of example, in 2008, a

Democrat, knowing that the Democratic Party candi-

dates were choosing not to campaign in the presidential

primary in Michigan, could have selected the ballot for

and voted in the Republican Party’s presidential pri-

mary. That Democrat was not making a “declaration” of

party preference. Rather, he or she was simply choosing

to vote in the Republican Party’s 2008 presidential

primary. This choice—a ticket to ride obtained at the

polling place, good for that day only and not applicable

to any other trains (in the form of future presidential

primaries) that might leave the station—is not voter

registration information and it certainly is not a decla-

ration of party preference. Thus, amended § 495a(2)

does not exempt from disclosure the “information”

regarding party preference contained in the “separate

record[s]” kept under § 615c(3) of 2007 PA 52 because

that information is not a “declaration of party prefer-

ence” (or no preference). It follows, therefore, that

§ 13(1)(d) of FOIA does not apply to that “information,”

because no statutory exemption covers it.

The dissent concedes that the voter registration

records protected under amended § 495a(2) are not the

“exact same records” as the separate records kept

under § 615c(3) of 2007 PA 52.

But the dissent con-

tends that the information contained in these records is

nevertheless the same.

This can be so only if a

declaration by an elector of a party preference—30 days

in advance of a presidential primary—is the same as a

selection by an elector—on the day of the presidential

primary—of a participating political party ballot on

which that elector wishes to cast his or her vote. If we

Id.

Post at 479.

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are to assume—and we do—that words have meaning,

and if we are required to operate under the

presumption—and we are certainly so required—that

the Legislature chooses the words it uses both purpose-

fully and precisely, then a declaration of a party prefer-

ence under amended § 495a(2) is not the same as a

selection of a ballot under § 615c(3) of 2007 PA 52.

The fact that eligibility to vote was “conditioned”

upon both a declaration of party preference, on the one

hand, and the selection of a ballot, on the other, does not

make the information collected under amended

§ 495a(2) and § 615c(3) of 2007 PA 52 the same, or even

similar, information. The distinction in the terms that

the Legislature used is one with a difference. Accord-

ingly, the phrase “declaration of party preference” does

not “plainly and unambiguously encompass[] an elec-

tor’s selection of a party’s ballot.”

These are two

separate and distinct acts and, the dissent to the

contrary, the information relating to them is similarly

separate and distinct.

III. THE PRIVACY EXEMPTION TO DISCLOSURE UNDER FOIA

A. STATUTORY PROVISIONS

Section 13(1)(a) of FOIA sets out the “privacy exemp-

tion” to disclosure under FOIA as follows:

(1) A public body may exempt from disclosure as a public

record under this act any of the following:

(a) Information of a personal nature if public disclosure

of the information would constitute a clearly unwarranted

invasion of an individual’s privacy.

[

]

Post at 479.

Post at 480.

MCL 15.243(1)(a) (emphasis added).

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B. OVERVIEW

It is well at the outset to be clear about exactly what

information is at issue here. First, the information at

issue is not the names and addresses of the persons who

voted in the 2008 presidential primary. As the Secretary

concedes, she has released the names and addresses of

registered voters in the past. And there is ample prece-

dent, in a number of different contexts, for the release

of names and addresses.

Second, the information at issue is not simply the

listing of the number of votes cast in any of the political

parties’ 2008 presidential primaries, with names and

addresses redacted. Self-evidently, this information is

available to any interested citizen who cares to inspect the

publicly published results of the 2008 presidential prima-

ries. Indeed, that same citizen could quickly learn how

many votes were cast for each candidate of the respective

parties in each of the 2008 presidential primaries by

inspecting the same publicly available results.

Rather, it is the names and addresses of the persons

who voted in the 2008 presidential primary coupled

with the party preference that those persons indicated

in order to obtain a ballot relating to one of the

participating political parties. It is this information that

the Secretary asserts is exempt from disclosure under

the privacy exemption of FOIA.

See, for example, Int’l Union, United Plant Guard Workers of

America v Dep’t of State Police, 422 Mich 432; 373 NW2d 713 (1985) (list

containing names and home addresses of individuals employed by private

security guard agencies was not so personal and private that it should not

be disclosed); Tobin v Civil Serv Comm, 416 Mich 661; 331 NW2d 184

(1982) (FOIA does not prohibit disclosure of names and addresses of

classified civil service employees to public employee labor organizations);

Mich State Employees Ass’n v Dep’t of Mgt & Budget, 135 Mich App 248;

353 NW2d 496 (1984) (employees’ home addresses do not fall under

privacy exemption of FOIA).

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We are to engage in a two-pronged inquiry to ascer-

tain whether the privacy exemption is applicable. First,

we must determine whether the information is “ ‘of a

personal nature.’ ” Second, we must determine whether

the “public disclosure of that information ‘would con-

stitute a clearly unwarranted invasion of an individu-

al’s privacy.’ ”

In interpreting statutes, our goal is to ascertain the

Legislature’s intent.

And in so doing, our first step is

to look at the language that the Legislature used.

This

is so because “[t]he words of a statute provide ‘the most

reliable evidence of [the Legislature’s] intent....’”

But, here, the Secretary implies that we should go

beyond the words of the statute and consider “a sam-

pling of public outrage expressed during the 1992 closed

presidential election.” She then quotes at length from

newspaper articles, editorials, and letters to the editor

concerning the 1992 primary and suggests, without any

supporting authority, that we can take judicial notice of

these articles, editorials, and letters to the editors. We

decline to do so. Our inquiry here is, and must be,

limited to the words of the statute.

The dissent similarly relies on the deus ex machina of

public outcry to underpin its analysis of the enactment

of the 1995 FOIA provision.

The dissent states that, “A

Senate Fiscal Agency bill analysis cited ‘public outrage’

as a reason for changing the primary election system

Mich Federation of Teachers v Univ of Mich, 481 Mich 657, 675; 753

NW2d 28 (2008).

Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d

275 (2004).

Id. at 549.

Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119

(1999), quoting United States v Turkette, 452 US 576, 593; 101 S Ct 2524;

69 L Ed 2d 246 (1981).

See post at 468 n 1.

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from a closed system to an open one.”

The Legislature

did no such thing. One legislative analyst reached that

conclusion. That analyst’s views reflected the analyst’s

own opinion, nothing more. Those views may not have

been the views of a single legislator, much less of the

entire Legislature at the moment it voted upon the

legislation in question.

Upon this highly suspect basis, the dissent piles a

goodly number of imaginary horribles that it anticipates

may occur if the Secretary releases the names and ad-

dresses of the persons who voted in the 2008 presidential

primary coupled with the party preference that those

persons ostensibly indicated. The dissent asserts that

disclosure “could subject electors to unwanted or unwar-

ranted attention from peers, colleagues, and neighbors

and could result in serious discomfort amongst family

members.”

And, the dissent states, “[I]n some instances,

disclosure could subject electors to harassment or ridicule

from those same groups and could impact a person’s

professional career, especially if that person is employed in

a political profession, such as a public officer or an

employee of a nonprofit political organization.”

We can only emphasize that this is pure speculation,

with not a speck of evidence—other than the alleged

“public outcry” over disclosure of party declaration

information taken whole cloth from a single legislative

analysis by an unknown author—to support it.

Moreover, the future use of the information is irrel-

evant to determining whether the privacy exemption

Post at 468 n 1.

Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587 n

7; 624 NW2d 180 (2001).

Post at 484.

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applies.

And, as the Michigan Supreme Court has

recently proclaimed, only the circumstances known to

the public body at the time of the request are relevant

to whether an exemption precludes disclosure.

Be-

cause Practical Political Consulting did not reveal the

purposes for its March 26, 2008, FOIA request, the

Secretary could not have known those purposes at the

time of her denial. And no matter what use Practical

Political Consulting may make of the requested

information—even if Practical Political Consulting in-

tends to send unwanted mass mailings or a deluge of

junk mail or make telephone solicitations or personal

visits

—such future use is irrelevant.

We also note the dissent’s reliance

on the “explicit”

provision of 2007 PA 52 that exempts “information

acquired or in the possession of a public body indicating

which participating political party ballot an elector

selected at a presidential primary” from disclosure

under FOIA.

We agree that such an exemption from

disclosure under FOIA existed in 2007 PA 52. But we

note that 2007 PA 52 also contained an explicit non-

severability provision.

Therefore, while it is clear that

the Legislature intended to exempt from disclosure

information regarding which participating political

party ballot an elector selected in the 2008 presidential

primary, it is also clear that the Legislature intended

that if any provision of 2007 PA 52 were to be found

State Employees Ass’n v Dep’t of Mgt & Budget, 428 Mich 104, 121;

404 NW2d 606 (1987).

State News v Mich State Univ, 481 Mich 692, 703; 753 NW2d 20

(2008).

See post at 497-498.

See post at 488.

MCL 168.615c(4), as added by 2007 PA 52.

2007 PA 52, enacting § 1.

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invalid, the remainder of the statute would likewise be

“invalid, inoperable, and without effect.”

And, of

course, that is exactly what happened.

In essence, then, in 2007 PA 52, the Legislature created

a structure that was whole and complete unto itself. But

the Legislature also provided that if any component of

that structure were to be removed, the entire edifice

would crumble. Therefore, the exemption from disclosure

under the FOIA provision of 2007 PA 52, like all other

provisions of the statute, would fall of its own weight and

would henceforth be “invalid, inoperable, and without

effect.” Under such circumstances, there can be no other

conclusion but that the Legislature clearly intended that

the situation would revert to the status quo ante and that

amended § 495a(2)

would be once again of full force and

effect. Thus, of necessity, we are left with the language of

amended § 495a(2) as it existed before the Legislature

enacted 2007 PA 52, with the language of the FOIA

privacy exemption itself, and with the cases interpreting

or relevant to that language. And that is where we should

start our analysis and where we should end it.

C. INFORMATION OF A PERSONAL NATURE

Although the Secretary and the dissent discount its

importance, the decision in Ferency v Secretary of

State

is of direct relevance to whether the names and

addresses of the persons who voted in the 2008 presi-

dential primary coupled with the party preference that

those persons indicated is information of a personal

nature. In deciding a similar—although admittedly not

exactly the same—question, this Court in Ferency

stated:

Id.

MCL 168.495a(2), as amended by 1995 PA 213.

Ferency v Secretary of State, 190 Mich App 398; 476 NW 2d 417

(1991).

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This [the disclosure of party affiliation] does not violate the

secrecy of the ballot, because there is no legitimate interest

by the voter to shield his affiliation from a party where that

voter decides to participate in the party activities and where

the ballot remains secret once the voter gets in the primary

election booth.

[

]

It is helpful to break this quotation down in order to

understand it fully. The disclosure of party affiliation in

question was the declaration of party preference that,

under the 1988-1995 closed primary system, an elector

had to make 30 days in advance in order to vote in a

party’s presidential primary. As noted, in effect, the

elector was then declaring that he or she was a Demo-

crat, a Republican, or a member of another party.

By contrast, in 2008, an elector was not making a

declaration of a party preference. Rather, that elector

was simply indicating the ballot—Democratic, Republi-

can, or a third party—that he or she wished to vote.

Certainly, the indication of a ballot that an elector

wished to vote in the 2008 presidential primary is

information of a less personal nature than is a declara-

tion of a party preference that an elector was required

to make, if he or she wished to vote in a presidential

primary, between 1988 and 1995.

It is possible to distinguish Ferency on the ground that

it relates to information that was to be given to a political

party rather than, as is the case here, information that is

available to the general public. This is certainly relevant

to the party’s interest in conducting its presidential pri-

maries. But we do not understand how a wider distribu-

tion to the general public, as would be the case here, as

contrasted to a more limited distribution to the political

parties, as was the case between 1988 and 1995, makes

Id. at 418 (emphasis added).

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the information in question here any more personal in

nature than it would otherwise be.

Last, and perhaps most fundamentally, the whole

thrust of the sacrosanct concept of ballot secrecy

is to

protect from disclosure the identity of the candidates

for which an elector voted. This is, after all, why we vote

in secret. But, the dissent to the contrary,

the disclo-

sure of the ballot—Republican, Democratic, or other—

that an elector voted in the 2008 presidential primary is

obviously not the disclosure of the candidate for which

that elector voted. As this Court said in Ferency:

The requirement that a voter publicly register as being

affiliated with one party or the other in order to be eligible

to vote in the presidential primary does not itself directly

affect the secrecy of the voter’s ballot. That is, the voter is

not required to disclose which individual candidate he is

voting for, but is merely required to disclose from which

group of candidates he is making his selection (i.e., which

party primary he is voting in).

[

]

We therefore conclude that the indication of a ballot

that an elector wished to vote in the 2008 presidential

primary is not information of a personal nature.

D. CLEARLY UNWARRANTED INVASION

OF AN INDIVIDUAL’S PRIVACY

Even if the disclosure of information regarding the

ballots that electors voted in the 2008 presidential

See Const 1963, art 2, § 4.

See post at 483: “Disclosure would reveal that a person voted for

particular types of candidates and an inference could be drawn as to whom

an individual voted for on the basis of the makeup of the ballot.” (Emphasis

added). We fail to see how, for example, the disclosure that an individual

selected the Republican ballot as the one on which he or she preferred to

vote in the 2008 presidential primary would permit an inference that the

individual voted for John McCain rather than Mitt Romney.

Ferency, 190 Mich App at 414.

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primary is the disclosure of personal information, this is

not enough to exempt this information from disclosure.

Such disclosure must also constitute a “clearly unwar-

ranted” invasion of an individual’s privacy.

This in-

quiry requires us to

balance the public interest in disclosure against the inter-

est [the Legislature] intended the exemption to pro-

tect[.]...[T]he only relevant public interest in disclosure

to be weighed in this balance is the extent to which

disclosure would serve the core purpose of the FOIA, which

is contributing significantly to public understanding of the

operations or activities of the government.

[

]

In Michigan, from 1988 to 1995, there was no restric-

tion upon the release not only of electors’ names and

addresses but also upon their declarations of party pref-

erence. This disclosure of the names and addresses was a

warranted invasion of personal privacy because that dis-

closure was necessary to inform the general public

whether voters were properly registered and whether they

were voting in the proper precinct. Disclosure of such

information, if requested, was necessary to hold govern-

ment accountable for the integrity and purity of this

state’s elections.

This is the core purpose of FOIA. That purpose is to

provide the people of this state with full and complete

information regarding the government’s affairs and the

official actions of governmental officials and employ-

ees.

As this Court said in State News v Mich State

Univ:

MCL 15.243(1)(a); Mich Federation of Teachers, 481 Mich at 675.

Mich Federation of Teachers, 481 Mich at 673 (quotation marks and

citations omitted).

MCL 15.231(2); Taylor v Lansing Bd of Water & Light, 272 Mich App

200, 204; 725 NW2d 84 (2006).

State News v Mich State Univ, 274 Mich App 558, 567-568; 735

NW2d 649 (2007), rev’d in part on other grounds 481 Mich 692 (2008).

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Central to both the broad policy and the implement-

ing mechanisms of FOIA is the concept of accountability.

FOIA, through its disclosure provisions, allows the citi-

zens of Michigan to hold public officials accountable for

the decisions that those officials make on their behalf. By

shifting the balance away from restricted access to open

access in all but a limited number of instances, the

Legislature necessarily determined that, except in those

limited instances, disclosure facilitates the process of

governing because it incorporates the concept of ac-

countability.

The Secretary clearly recognizes the concept of

accountability. But she turns away from that concept

when she argues that, assuming the public has an

interest in knowing how public officials performed

their tasks associated with the 2008 presidential

primary, “the linking of party preference information

with voter name, address, and qualified voter num-

ber, does nothing to inform the public about how local

clerks of the Secretary...areperforming their statu-

tory and public duties with regard to elections.” To

the contrary, we conclude that disclosure of such

information would inform the public to what extent

the Secretary and the various local clerks carried out

the requirements of 2007 PA 52. Indeed, there is no

other way by which these individuals can be held

accountable for their implementation of a then-valid

statute. And, we emphasize, there is no doubt that

the public has a strong and ongoing interest in

knowing how public officials perform the tasks that

the law assigns to them.

Thus, there is a strong—not a “virtually

nonexistent”

—public interest in disclosure. And, con-

versely, in order to avoid disclosure, a party must show

a “clearly unwarranted” invasion of an individual’s

Post at 497.

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privacy.

In a manner of speaking, the Legislature when

enacting, and courts when interpreting, the privacy ex-

emption of FOIA have weighted the scales heavily in favor

of disclosure: the balance to be struck is between the

public’s ongoing interest in governmental accountability,

on the one hand, and clearly unwarranted invasions of

privacy on the other. Under this exemption, the scales are

not balanced equally at the outset, and for good reason. In

all but a limited number of circumstances, the public’s

interest in governmental accountability prevails over an

individual’s, or a group of individuals’, expectation of

privacy. As Louis D. Brandeis stated so many years ago,

“Publicity is justly commended as a remedy for social and

industrial diseases. Sunlight is said to be the best of

disinfectants; electric light the most efficient police-

man.”

And, we emphasize, if there ever was an area in

which that disinfectant is the most needed, it is in the

conducting of elections. Elections constitute the bed-

rock of democracy and the public’s interest in the

purity of such elections is of paramount importance.

If we cannot hold our election officials accountable

for the way in which they conduct our elections, then

we risk the franchise itself. And we cannot hold our

election officials accountable if we do not have the

information upon which to evaluate their actions. We

therefore conclude that, even if the indication of a

ballot that an elector wished to vote in the 2008

presidential primary were to be viewed as being of a

personal nature, its disclosure would not be a clearly

unwarranted invasion of that elector’s privacy.

MCL 15.243(1)(a); Mich Federation of Teachers, 481 Mich at 675.

Brandeis, Other People’s Money—and How the Bankers Use It 92

(Fredericks A. Stokes Co, 1914).

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IV. CONCLUSION

FOIA is a pro disclosure statute that we are to

interpret broadly to allow public access. Conversely,

we are to interpret its exemptions narrowly so that

we do not undermine its disclosure provisions.

Sim-

ply put, the core purpose of FOIA is disclosure of public

records in order to ensure the accountability of public

officials.

Here, there is no question that the “separate

record[s]” created under § 615c(3) of 2007 PA 52

for

the 2008 presidential primary that contain the printed

name, address, and qualified voter file number of each

elector and the participating political party ballot se-

lected by that elector at the 2008 presidential primary

are public records. And there is no question that these

“separate record[s]” were also the public records that

Practical Political Consulting sought in its March 26,

2008, FOIA request.

As we have outlined above, these “separate

record[s]” are not specifically described and exempted

from disclosure under amended § 495a(2). The “voter

registration record[s]” that amended § 495a(2) exempts

from disclosure are completely distinct from the “sepa-

rate record[s]” kept under § 615c(3) of 2007 PA 52.

Further, “information” kept under § 615c(3) of 2007 PA

52 is not an elector’s “declaration of party preference”

(or no preference). And it is only such declarations of

party preference that amended § 495a(2) exempts from

disclosure. With this in mind, we conclude that the

statutory exemption from disclosure under FOIA ap-

plies neither to these “separate record[s],” nor to the

information contained therein.

State News, 274 Mich App at 567.

Id.

MCL 168.615c(3), as added by 2007 PA 52.

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Moreover, the disclosure of information regarding

the ballots that electors voted in the 2008 presiden-

tial primary is not the disclosure of personal infor-

mation. But even if it were, such disclosure would not

constitute a “clearly unwarranted” invasion of an

individual’s privacy. Thus, we conclude that the pri-

vacy exemption from disclosure under FOIA also does

not apply to these “separate record[s]” or to the

information contained in them.

Affirmed. No costs, a public question being involved.

ORRELLO

,P.J., concurred.

K. F. K

ELLY

,J.(dissenting). I respectfully dissent

from my distinguished colleagues’ conclusion that the

requested records are not exempt from disclosure

under the statutory and privacy exemptions of the

Freedom of Information Act (FOIA), MCL 15.231 et

seq. In my view, the information collected during the

2008 presidential primary is information protected by

statute and its disclosure would constitute a “clearly

unwarranted invasion” of an individual’s privacy, and

thus is exempt from disclosure under the FOIA.

I. HISTORICAL BACKGROUND AND PROCEDURAL HISTORY

Michigan’s election law governs the selection of pub-

lic officials to public office and is meant to ensure the

purity and integrity of elections. 1954 PA 116, enacting

MCL 168.1 et seq.; Taylor v Currie, 277 Mich App 85, 96;

743 NW2d 571 (2007). A particular set of rules applies

to presidential primary elections, by which voters of

political parties determine which nominees will run in

the general presidential election. See O’Hara v Wayne

Co Clerk, 238 Mich App 611, 614-615; 607 NW2d 380

(1999). The presidential primary election rules control

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the selection of nominees for each party, the choice of

delegates, and voting requirements for individuals vot-

ing in the primary. Michigan Department of State,

Bureau of Elections, Michigan Presidential Primary

Facts & Statistics (October 16, 2006). Historically,

Michigan has employed either a “closed” or an “open”

primary election system; generally, the former system

requires voters to disclose their political party prefer-

ence before they are eligible to vote in the election,

while the latter allows electors to vote in the primary

without disclosing any party preference beforehand.

Because an overview of Michigan’s primary election

system informs my viewpoint, I briefly discuss the

relevant history below.

A. MICHIGAN’S 1988 PRIMARY ELECTION LAW

In 1988, Michigan used a closed primary system. MCL

168.495(1)(k), as amended by 1988 PA 275 (1988 election

law). In order to vote in the primary, individuals were

required to declare their party preference on their regis-

tration record at least 30 days before the primary. MCL

168.523(3), as amended by 1988 PA 275. An individual

who properly declared himself or herself as a Republican,

for example, would be eligible to vote only for Republican

candidates, as well as nonpartisan candidates. The con-

verse would be true for a Democrat. Voters who did not

declare a preference were not eligible to vote in the

presidential primaries. For voters who did submit a dec-

laration, the information regarding the voters’ party pref-

erence was captured, recorded, and maintained on their

registration files with the Secretary of State. MCL

168.495a, as added by 1988 PA 275. The 1988 election law

did not address whether this information, including vot-

ers’ identifying information and party preference infor-

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mation, was disclosable to the general public or whether

this information could be deleted from a voter’s file.

B. MICHIGAN’S PRIMARY ELECTION LAW BETWEEN 1995 AND 2003

The requirement that voters declare a political prefer-

ence, and the lack of protection as to that information,

caused a public outcry.

In response to the public’s concern

over the privacy of their political preferences, the Legisla-

ture amended the election law to require open primaries.

MCL 168.495, as amended by 1995 PA 87. Under this

system, it was no longer necessary for electors to disclose

their party preferences in order to vote in the primary.

Rather, voters arriving at the polls on the day of the

primary election were given access to both parties’ ballots.

The voter would then, in the privacy of the election booth,

select the party primary in which he or she wanted to

A Senate Fiscal Agency bill analysis cited “public outrage” as a reason

for changing the primary election system from a closed system to an open

one. Specifically, it reasoned:

It has become clear that while some voters will register their

party preference before voting, many feel that it is an intrusion on

their right to a secret ballot, and simply will not divulge that

information in order to be allowed to vote....While [changes to

party rules allowing undeclared voters to vote] made it less likely

that a registered voter would be turned away at the polls, the fact

remained that an examination of voting records would reveal [the]

party’s primary in which the person voted. What the voters of

Michigan want is a return to the time-honored tradition of the

secret ballot. The bill, by re-establishing an open primary, would

fulfill that desire. [Senate Fiscal Agency Bill Analysis, HB 4435,

May 30, 1995.]

While legislative history is not relevant in construing the meaning of a

statute, amendments to legislation are relevant in the context of the

FOIA’s privacy exemption. When FOIA exemptions are at issue, Legis-

lative enactments may be considered as some evidence of the communi-

ty’s mores and values. See Mich Federation of Teachers v Univ of Mich,

481 Mich 657, 677 n 59; 753 NW2d 28 (2008) (noting recent legislative

changes as indicative of a community’s customs).

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participate. The ballot the voter selected was not recorded

by voting officials and no reference whatsoever to a voter’s

selection was created, or maintained, in a voter’s registra-

tion file. Nonetheless, for voters who previously voted in a

closed primary, their prior political declarations remained

on file as a public record.

Also in 1995, the Legislature further amended the

election law to provide that voters’ declarations of party

preferences are not disclosable through the FOIA. MCL

168.495a, as amended by 1995 PA 213 (the 1995 FOIA

provision). Specifically, that provision provided:

(1) If an elector declared a party preference or no party

preference as previously provided under this act for the

purpose of voting in a statewide presidential primary

election, a clerk or authorized assistant to the clerk may

remove that declaration from the precinct registration file

and the master registration file of that elector and the

precinct registration list, if applicable.

(2) Beginning on [November 29, 1995], a person making

a request under the freedom of information act, Act No.

442 of the Public Acts of 1976, being sections 15.231 to

15.246 of the Michigan Compiled Laws, is not entitled to

receive a copy of a portion of a voter registration record

that contains a declaration of party preference or no party

preference of an elector. Beginning on the effective date of

the amendatory act that added this sentence, a clerk or any

other person shall not release a copy of a portion of a voter

registration record that contains a declaration of party

preference or no party preference of an elector. [MCL

168.495a, as amended by 1995 PA 213.]

In other words, as of 1995, Michigan employed an open

primary system that did not require a declaration of,

and did not record, electors’ political preferences, and

which also prohibited the disclosure through the FOIA

of voter registration records containing any such politi-

cal preference. Between 1995 and 2007, a number of

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additional amendments were made to Michigan’s presi-

dential primary election law, the last in 2003, but none

of these affected the election system’s status as an open

primary system that prohibited disclosure of voter

registration records containing political preferences.

See 1999 PA 72; 2003 PA 13.

C. MICHIGAN’S 2007 PRIMARY ELECTION LAW

Before the 2008 presidential primary, the Legislature

again amended Michigan’s election law to employ a

semi-closed primary process. See MCL 168.615c, as

added by 2007 PA 52 (2007 election statute). Under this

new amendatory act,

there was no requirement that a

voter declare a party preference 30 days ahead of time

in order to vote in the presidential primary. Rather,

voters arriving at the polls were required to indicate in

writing on a form provided by the Secretary of State’s

office which ballot they preferred, Democratic or Re-

publican. MCL 168.615c(1). When the voter selected his

or her ballot, city or township clerks were required to

capture this information in a separate record, which

contained the printed name, address, qualified voter file

number of each voter, and the political party ballot the

voter had selected. MCL 168.615c(3).

Significantly, the 2007 election statute also included

a nonseverability clause. 2007 PA 52, enacting § 1. That

provision provided:

If any portion of this amendatory act or the application

of this amendatory act to any person or circumstances is

found invalid by a court, it is the intent of the legislature

that the provisions of this amendatory act are nonseverable

and that the remainder of the amendatory act shall be

invalid, inoperable, and without effect.

The 2007 election law amended seven provisions of the existing

election law, added three new sections, and contained two enactments.

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In addition, the 2007 election statute repealed certain

sections of Michigan’s election law, including the 1995

FOIA provision, MCL 168.495a. 2007 PA 52, enacting

§ 2 (the repealer). In its place, the 2007 election law

provided its own FOIA provision, which provided:

Except as otherwise provided in this section, the infor-

mation acquired or in the possession of a pubic body

indicating which participating political party ballot an

elector selected at a presidential primary is confidential,

exempt from disclosure under the [FOIA], and shall not be

disclosed to any person for any reason. [MCL 168.615c(4),

as added by 2007 PA 52.]

The 2007 election statute went into effect on September

4, 2007.

D. THE 2008 PRESIDENTIAL PRIMARY

The 2008 primary election was carried out according to

the 2007 election statute. However, shortly after the 2008

primary, a federal district court declared § 615c of the

2007 election statute unconstitutional as a violation of the

United States Constitution’s Equal Protection Clause in

Green Party of Mich v Mich Secretary of State, 541 F Supp

2d 912, 924 (ED Mich, 2008). Accordingly, because of the

2007 election law’s non-severability clause, the entire

amendatory act fell together and it became null and void.

See, e.g., John Spry Lumber Co v Sault Savings Bank

Loan & Trust Co, 77 Mich 199, 200-202; 43 NW 778

(1889) (concluding that all provisions of a nonseverable

unconstitutional statute fall together, leaving the prior

law intact); M & S Builders v Dearborn, 344 Mich 17,

19-20; 73 NW2d 283 (1955) (finding that a repeal became

invalid with the rest of an amendment that was declared

invalid, thus reviving the prior law). Thus, the repealer

was struck down, as was the 2007 election law’s FOIA

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provision. As a result, and as the parties agree, Michigan’s

prior election law, as it stood in 2003, applies to this

matter.

E. PLAINTIFF’S FOIA REQUEST

On March 26, 2008, the same day the federal court

announced its decision, plaintiff, Practical Political

Consulting, Inc., submitted a FOIA request to defen-

dants. Specifically, plaintiff requested “all voter history

[of the 2008 presidential primary election] including

which ballot, [Democratic or Republican], each voter

selected.” This information was the information col-

lected pursuant to the 2007 election statute.

On April 17, 2008, defendants denied the FOIA

request, reasoning that the requested documents were

not public records and were exempt from disclosure

under the statutory exemption of the FOIA, MCL

15.243(1)(d), which provides:

(1) A public body may exempt from disclosure as a public

record under this act any of the following:

***

(d) Records or information specifically described and

exempted from disclosure by statute.

Defendants also reasoned that the party preference

information was exempt under the FOIA’s privacy

exemption, which states:

(1) A public body may exempt from disclosure as a public

record under this act any of the following:

(a) Information of a personal nature if public disclosure

of the information would constitute a clearly unwarranted

invasion of an individual’s privacy. [MCL 15.243(1)(a).]

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More specifically, defendants posited that the informa-

tion was protected from disclosure under either the

2007 election statute’s FOIA provision or its predeces-

sor provision, the 1995 FOIA provision, MCL 168.495a;

and, further, that the records contained information of

a personal nature, the disclosure of which would not

provide meaningful insight into the workings of the

government, and would be a clearly unwarranted inva-

sion of individuals’ privacy.

As a result of defendants’ denial, plaintiff sought a

judgment in the trial court declaring defendants to be in

violation of the FOIA. On the parties’ cross-motions for

summary disposition, the trial court ruled in plaintiff’s

favor. It found that the records created were public

records and that neither exemption applied.

Defendants appeal as of right, asserting that the

records, and the information contained therein, are

exempt under the FOIA.

Disclosure of the requested

records was stayed pending the outcome of this appeal.

II. STANDARDS OF REVIEW

Whether a public record is exempt from disclosure

pursuant to the FOIA is a question of law reviewed de

novo. Herald Co, Inc v Eastern Mich Univ Bd of

Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006).

In addition, review of the trial court’s decision on the

parties’ motions for summary disposition is also de

novo.

Campbell v Dep’t of Human Servs, 286 Mich App

On appeal, defendants no longer contend that the records are not

“public records.”

Because the trial court considered information outside the pleadings,

I consider the court’s decision to be based on MCR 2.116(C)(10). A motion

under this subrule is properly granted if there is no genuine issue of

material fact and judgment is proper as a matter of law. Farm Bureau Ins

Co v Abalos, 277 Mich App 41, 43-44; 742 NW2d 624 (2007).

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230, 234-235; 780 NW2d 586 (2009). Further, to the

extent that this Court must engage in statutory con-

struction, review is, again, de novo. Mich Federation of

Teachers v Univ of Mich, 481 Mich 657, 664; 753 NW2d

28 (2008). The goal in interpreting a statute is to

ascertain the Legislature’s intent. Shinholster v An-

napolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275

(2004). The first step in doing so is looking to the

language used. Id. at 549. Effect must be given to each

word, reading provisions as a whole, and in the context

of the entire statute. Green v Ziegelman, 282 Mich App

292, 301-302; 767 NW2d 660 (2009). If the language is

clear and unambiguous, the statute must be applied as

written. Beattie v Mickalich, 284 Mich App 564, 570;

773 NW2d 748 (2009). In such instances, judicial con-

struction is neither necessary nor permitted. Id. Fur-

ther, because the FOIA is a prodisclosure statute, “its

disclosure provisions [are interpreted] broadly to allow

public access, and... its exceptions [are interpreted]

narrowly so that...itsdisclosure provisions [are not

undermined].” State News v Mich State Univ, 274 Mich

App 558, 567; 735 NW2d 649 (2007) (State News I),

rev’d in part on other grounds 481 Mich 692 (2008).

III. THE FOIA

The purpose of Michigan’s FOIA statute is to provide

the people of Michigan full and complete information

regarding the government’s affairs and the official actions

of governmental officials and employees. MCL 15.231(2);

Taylor v Lansing Bd of Water & Light, 272 Mich App 200,

204; 725 NW2d 84 (2006). Disclosure of this information is

designed to promote governmental accountability and is

imperative to a democracy; full disclosure of governmental

activity informs the citizenry so that they may fully

participate in the democratic process. See MCL 15.231(2);

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State News I, supra at 567-568. Stated differently, the

FOIA functions to allow the citizenry to hold public

officials accountable for the decisions they make on behalf

of those citizens. See, e.g., Detroit Free Press, Inc v City of

Warren, 250 Mich App 164, 168-169; 645 NW2d 71 (2002)

(“Under...FOIA, citizens are entitled to obtain informa-

tion regarding the manner in which public employees are

fulfilling their public responsibilities.”); Manning v East

Tawas, 234 Mich App 244, 248; 593 NW2d 649 (1999)

(noting that the FOIA is a manifestation of the state’s

public policy recognizing the need that public officials be

held accountable for their official actions and citizens be

informed); Thomas v New Baltimore, 254 Mich App 196,

201; 657 NW2d 530 (2002) (explaining that the FOIA was

enacted “recognizing the need for citizens to be informed

so that they may fully participate in the democratic

process and thereby hold public officials accountable for

the manner in which they discharge their duties”). Ac-

cordingly, Michigan’s FOIA statute requires a public body

to disclose public records to individuals who request to

inspect, copy, or receive copies of its public records. MCL

15.233; Scharret v City of Berkley, 249 Mich App 405,

411-412; 642 NW2d 685 (2002).

However, certain public records need not be disclosed

if they are exempt from disclosure under one of the

exemptions articulated in MCL 15.243. If the requested

public records fall within one of these exceptions, it is

within the public body’s discretion whether to release

the information. Bradley v Saranac Community Sch Bd

of Ed, 455 Mich 285, 293; 565 NW2d 650 (1997). In

determining whether an exemption applies, the identity

of the requester is irrelevant, as is the initial and the

future use of the information. State Employees Ass’n v

Dep’t of Mgt & Budget, 428 Mich 104, 121; 404 NW2d

606 (1987) (opinion by C

AVANAGH

, J.). Moreover, only the

circumstances known to the public body at the time of

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the request are relevant to whether an exemption

precludes disclosure. State News v Mich State Univ, 481

Mich 692, 703; 753 NW2d 20 (2008) (State News II).

Further, because the FOIA’s core purpose is the disclo-

sure of public records, the courts of this state have

narrowly construed the FOIA’s exemptions in favor of

disclosure. State News I, supra at 567.

IV. MCL 15.243(1)(d): THE FOIA’S STATUTORY EXEMPTION

On appeal, defendants first argue that the trial court

erred by determining that the information collected at

the 2008 primary election was not exempt from disclo-

sure under the FOIA’s statutory exemption. I would

agree.

The FOIA’s statutory exemption provides:

(1) A public body may exempt from disclosure as a public

record under this act any of the following:

***

(d) Records or information specifically described and

exempted from disclosure by statute. [MCL 15.243(1)(d)

(emphasis added).]

By its terms, this exemption incorporates statutes that

specifically exempt certain records or information from

disclosure through the FOIA. Accordingly, there must

be a statute specifically exempting the “[r]ecords or

information specifically described” in order for this

exemption to apply. Significantly, the provision uses the

conjunction “or” between the words “[r]ecords” and

“information.” The term “or” is to be interpreted

literally unless it renders a statute dubious; the word

“or” denotes a choice or alternative. Random House

Webster’s College Dictionary (1997); see Amerisure Ins

Co v Plumb, 282 Mich App 417, 429; 766 NW2d 878

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(2009). Thus, a statute may specifically describe records

that are exempt from disclosure or may specifically

describe information that is exempt from disclosure.

The term “record” means information preserved in

writing or some other documentary medium, whereas

“information” denotes knowledge communicated or re-

ceived. Random House Webster’s College Dictionary

(1997). Accordingly, the FOIA’s statutory exemption,

MCL 15.243(1)(d), protects from disclosure records that

are specifically described by statute or information that

is specifically described by statute.

Here, the relevant statutory provision, the 1995

FOIA provision, states:

(1) If an elector declared a party preference or no party

preference as previously provided under this act for the

purpose of voting in a statewide presidential primary

election, a clerk or authorized assistant to the clerk may

remove that declaration from the precinct registration file

and the master registration file of that elector and the

precinct registration list, if applicable.

(2) Beginning on [November 29, 1995], a person making

a request under the freedom of information act, Act No.

442 of the Public Acts of 1976, being sections 15.231 to

15.246 of the Michigan Compiled Laws, is not entitled to

receive a copy of a portion of a voter registration record

that contains a declaration of party preference or no party

preference of an elector. Beginning on the effective date of

the amendatory act that added this sentence, a clerk or any

other person shall not release a copy of a portion of a voter

registration record that contains a declaration of party

preference or no party preference of an elector. [MCL

168.495a, as amended by 1995 PA 213 (emphasis added).]

It is plaintiff’s contention that when these subsec-

tions are read together, subsection (2) only applies to

voter registration records created before the 1995 FOIA

provision. I disagree. Subsection (1) of this provision

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permits a clerk or other authorized person to remove, in

his or her discretion, “a party preference or no party

preference as previously provided under this act for the

purpose of voting in a statewide presidential primary

election....” This subsection specifically references

removal of party preference information that was pre-

viously captured and recorded pursuant to previous

versions of the election law.

Comparatively, subsection (2) prohibits disclosure

through the FOIA of “a copy of a portion of a voter

registration record that contains a declaration of party

preference or no party preference of an elector” from

November 29, 1995, on and forward. Importantly, sub-

section (2), unlike subsection (1), makes no reference

whatsoever to whether the party preference informa-

tion was collected under the previous election law; it

merely forbids disclosure of “a copy of a portion of a

voter registration record that contains a declaration of

party preference,” effective November 29, 1995. The

phrase “as previously provided under this act,” or other

limiting language on how party preference information

was obtained, is specifically absent from subsection (2).

Given the plain language of these two provisions, it is

my view that the Legislature intended to accomplish

two things through the 1995 FOIA provision. First,

under subsection (1), it permits the removal of all party

preference information previously captured. Clearly,

this position does not diverge from the majority’s view

on this point. Second, it prohibits the disclosure of party

preference information in the future. The Legislature

did not intend to limit subsection (2)’s terms to political

preference information collected under the prior law

because the Legislature explicitly chose not to use the

phrase “as previously provided under this act,” or other

similar limiting language. Cf. Houghton Lake Area

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Tourism & Convention Bureau v Wood, 255 Mich App

127, 151; 662 NW2d 758 (2003) (explaining doctrine of

expressio unius est exclusio alterius). Thus, contrary to

plaintiff’s argument, the protection from disclosure

provided by subsection (2) applies to all portions of

voter registration records containing a party declara-

tion, including those records created in the future. It is

in the application of this provision to the present matter

that my viewpoint diverges from the majority’s opinion.

The majority agrees with plaintiff that § 495a(2) does

not apply to the records created in the 2008 primary

because neither the records nor the information specifi-

cally described is the same as that protected by the 1995

FOIA provision, § 495a(2). While it may be true that the

“voter registration record[s]” protected by § 495a(2) are

not the exact same records in form that are specifically

described, the substance, or the information specifically

described by § 495a(2) and contained in those records,

is the same.

Section 495a(2), the 1995 FOIA provision, specifi-

cally protects from disclosure through the FOIA an

elector’s “declaration of party preference....”A“dec-

laration” is a “proclamation,” an “announcement,” or

an “act of declaring” something. Random House Web-

ster’s College Dictionary (1997). “Preference” is defined

as “something preferred [or given priority]; choice; [or]

selection.” Random House Webster’s College Dictionary

(1997). Clearly, an elector arriving at the polls for the

2008 primary had to proclaim which party he or she

preferred to vote for in order to vote, just as voters who

voted in previous closed primaries had to declare which

party they wished to vote for in order to vote. In both

instances, eligibility to vote was conditioned upon a

party preference declaration. In my view, this informa-

tion is specifically described and protected by the 1995

FOIA provision, § 495a(2).

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The majority, however, like plaintiff, attempts to

draw a distinction between a voter’s “declaration of

party preference” in the closed primaries and a

voter’s selection of a party ballot in the semi-closed

primary of 2008, to conclude that the information

described is not protected by the 1995 FOIA provi-

sion, § 495a(2). Stated more succinctly, the majority

posits that the selection of a party ballot is not

synonymous with a declaration of party preference.

This is an exercise in semantics and, in my view, the

“distinction” created is one without a difference.

Whether the information was collected during the

closed primaries of 1988-1995 or during the 2008

primary election is immaterial. In each instance, the

information captured, although collected by a differ-

ent procedure, is the same: an elector wishing to vote

in the primary was required to “proclaim” the party’s

primary he or she “preferred” to vote in. In both

instances, voters made a “declaration” of party pref-

erence. Further, I would point out that the Legisla-

ture deliberately chose to use the phrase “declaration

of party preference” without any conditional limiting

language, such as “declaration of party preference

made 30 days before the primary election.” The

majority’s reading of the 1995 FOIA provision,

§ 495a(2), equates its language with the latter. In my

view, such a reading is inapposite to our judicial role.

The Legislature chose to use the broad phrase, “dec-

laration of party preference,” which plainly and un-

ambiguously encompasses an elector’s selection of a

party’s ballot. Accordingly, I would conclude that the

requested information is protected from disclosure by

MCL 168.495a(2), as amended by 1995 PA 213, and is

therefore exempt under the FOIA’s statutory exemp-

tion. MCL 15.243(1)(d).

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V. MCL 15.243(1)(a): THE FOIA’S PRIVACY EXEMPTION

I would also conclude, contrary to the majority’s

position, that the requested records are exempt under

the FOIA’s privacy provision. That exemption excludes

from disclosure public records that would result in an

unwarranted invasion of an individual’s privacy. MCL

15.243(1)(a) states:

(1) A public body may exempt from disclosure as a public

record under this act any of the following:

(a) Information of a personal nature if public disclosure

of the information would constitute a clearly unwarranted

invasion of an individual’s privacy.

In Mich Federation of Teachers, supra at 675, the

Michigan Supreme Court articulated the applicable test

under this provision as a two-pronged inquiry. To sat-

isfy the test, (1) the information must be “of a personal

nature” and (2) “it must be the case that the public

disclosure of that information would constitute a clearly

unwarranted invasion of an individual’s privacy.” Id.

(quotation marks omitted).

Before engaging in this analysis, I note that this

notion of the right to privacy embodied by MCL

15.243(1)(a) is not defined by the Legislature. In recog-

nition of the nebulous nature of that term,

our Su-

preme Court has indicated that the courts of this state

may “look to the common law and constitutional law to

guide [them] in determining whether disclosure of the

Indeed, after over a century since Samuel D. Warren and future

Supreme Court Justice Louis D. Brandeis recognized the individual’s

common-law claim to a right of privacy, see Warren & Brandeis, The right

to privacy, 4 Harv L R 193 (1890), the concept remains problematic and

unwieldy. The concept is often equated with personal autonomy, e.g., the

right to be free from unwarranted searches and seizures and the right to

reproductive freedom, and courts have struggled to define its contours

with exactness.

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requested information would violate any privacy rights

under the FOIA.” Swickard v Wayne Co Med Examiner,

438 Mich 536, 547; 475 NW2d 304 (1991); see also

Bradley, supra at 294. In doing so, “[t]he contours and

limits [of privacy under MCL 15.243(1)(a)] are... to be

determined by the court, as the trier of fact, on a case-by-

case basis in the tradition of the common law.” State

Employees Ass’n, supra at 123 (opinion by C

AVANAGH

, J.).

Further, in applying this provision, the courts of this state

have looked to federal law for guidance. Mager v Dep’t of

State Police, 460 Mich 134, 144; 595 NW2d 142 (1999).

Thus, in my view, the test articulated in Mich Federa-

tion of Teachers must be applied to the facts of the

present matter consistently with these overarching

principles.

A. PERSONAL NATURE

As already stated, the first prong of the test is satisfied

if the requested information is of a “personal nature.”

Information is of a personal nature if it is “intimate,

embarrassing, private, or confidential....”Mich Federa-

tion of Teachers, supra at 676 (emphasis omitted). The

inquiry must be guided by, and evaluated in light of, “the

customs, mores, or ordinary views of the community....”

Herald Co v Bay City, 463 Mich 111, 123-124; 614 NW2d

873 (2000) (quotation marks and citations omitted). In

The federal FOIA privacy exemption is worded differently than

Michigan’s sister provision. It states that the federal FOIA does not apply

to “personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy.” 5

USC 552(b)(6). The only significant distinction between the federal

statute and the Michigan statute, is the federal provision’s use of the

terms, “personnel and medical files and similar files.” The Michigan

statute simply uses the phrase “personal nature.” Despite this difference,

the second part of the analysis requiring a balancing of the public’s

interest against individuals’ privacy interests is largely the same.

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considering the information in this context, it is important

to recognize that simply because the information may be

disclosed in one public sphere, does not necessarily mean

that the information is not of a personal nature. Mich

Federation of Teachers, supra at 680. Moreover, an indi-

vidual’s ability to control the dissemination of the infor-

mation, for example, by choosing to withhold it from

disclosure despite the fact that it may be available else-

where, is indicative of whether the information is of a

personal nature. Id.

Oddly, in determining whether the subject information

is of a personal nature, the majority ignores this well-

established jurisprudence and relies entirely on the lan-

guage of the 1995 FOIA provision, § 495a(2), and a single

case interpreting that provision in an unrelated context. I

cannot make sense of, let alone agree with, such a myopic

application of the law. In any event, an application of these

well-established rules dictates the conclusion that the

information is of a personal nature. Specifically, the infor-

mation requested implicates two separate privacy

interests—an individual’s privacy interest in his or her

political convictions and an individual’s privacy interest in

his or her personal identifying information—each of

which is discussed separately.

i. PRIVACY INTEREST IN POLITICAL CONVICTIONS

Here, the party preference information, if disclosed,

would reveal to the general public that an individual

voted on a strictly Republican, or strictly Democratic,

ballot in the 2008 presidential primary election. Disclo-

sure would reveal that a person voted for particular

types of candidates and an inference could be drawn as

to whom an individual voted for on the basis of the

makeup of the ballot. It is not difficult to see why an

elector might consider this information “intimate,...

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private, or confidential” and would want to keep this

information confidential. Envision a situation, for ex-

ample, where an elector votes inconsistently with his or

her normal political preference.

Obviously, some voters

would not wish to disclose this fact to third parties. In

such instances, public disclosure of party preference

information could subject electors to unwanted or un-

warranted attention from peers, colleagues, and neigh-

bors and could result in serious discomfort amongst

family members. Many electors would undoubtedly

avoid disclosing which primary they voted in to avoid

these same unpleasant ramifications.

Further, in some

instances, disclosure could subject electors to harass-

ment or ridicule from those same groups and could

impact a person’s professional career, especially if that

person is employed in a political profession, such as a

public officer or an employee of a nonprofit political

organization. It is not difficult to imagine that some

Electors cross political boundaries for any number of reasons, not

limited to: voting for a friend, voting for a preferred candidate, or voting

for a weak rival candidate.

I note in passing that the release of this information could also have

a chilling effect on some voters’ decisions to cross political boundaries

and vote for a candidate not associated with the voters’ typical political

party choices. This is precisely because the release of the information

would tend to erode the protections guaranteed by the right to a secret

ballot in all elections. Const 1963, art 2, § 4; Belcher v Ann Arbor Mayor,

402 Mich 132, 134; 262 NW2d 1 (1978). Electors’ votes would no longer

be fully cloaked by the shroud of secrecy. A voter’s ability to vote his or

her conscience without fear of reprisal or retaliation is imperative to a

well-functioning democracy. McIntyre v Ohio Elections Comm, 514 US

334, 343; 115 S Ct 1511; 131 L Ed 2d 426 (1995). Disclosure of the records

in this case would denigrate the protections that the right to a secret

ballot is meant to protect and could subject voters to reprisal. As Chief

Justice Burger recognized in Buckley v Valeo, 424 US 1, 237; 96 S Ct 612;

46 L Ed 2d 659 (1976) (Burger, C.J., concurring in part and dissenting in

part), the advent of the secret ballot as a universal practice was one of our

nation’s greatest political reforms, because privacy with regard to one’s

political preference is fundamental to a free society.

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individuals may interpret a particular elector’s vote as a

personal affront or a betrayal.

Having listed these possible ramifications as reasons

why a person may consider their political preference to

be private, I must object to the majority’s accusation

that such concerns are based on pure speculation, are

“imaginary horribles,” and are invented out of “whole

cloth.” First, these concerns are based on plain and

simple common sense. It is not surprising, given this

nation’s political history, that politics, political speech,

and support for or opposition to a particular candidate

can create arguments and result in heated debates. The

majority’s refusal to recognize these commonsense con-

cerns and the historical and social context in which a

FOIA privacy analysis must be undertaken is baffling.

Second, the newspaper articles, editorials, and letters

to the editor referred to in defendants’ reply brief on

appeal reinforce my position. These articles show that a

great deal of discussion was generated regarding the

revealing of electors’ political preferences during the

1992 presidential primary election. A sampling of these

articles include:

• Simon, State primary law an invasion of political

privacy, Detroit News (March 24, 1992) (“The ACLU

offices were besieged on primary day with calls from voters

complaining about...having their political party affilia-

tion made a permanent and publicly accessible part of their

voting record.”).

• Roelofs and Brandt, Closed primary shaping up to get

a vote of no confidence, Grand Rapids Press (November 18,

1991) (citing opinions of constituents complaining that

closed primary system constituted an “infringement of my

privacy”).

• Keep it open primary preference a private decision,

Lansing State Journal (January 12, 1992) (characterizing

system as “traumatic” because it requires a declaration of

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party preference “for all the world—most particularly

friends, neighbors, and political hacks—to hawk and her-

ald”).

• Mitzelfeld, Requirement to list party angers, turns

away voters, Detroit News (March 18, 1992) (“Voters were

so angry Tuesday over Michigan’s new party declaration

requirement that many stormed out of polling places and

refused to cast ballots.”).

• Weeks, March 17 primary turns off voters who don’t

want to find their names on either party’s list, Detroit News

(January 23, 1992) (“State law has the outrageous require-

ment that the declaration be made 30 days before the

election.”).

• Waldmeir, Unless something’s done soon, state’s closed

primary could be the most embarrassing ever, Detroit News

(February 9, 1992) (“Voters are rebelling at being forced to

announce to the world—30 days before an election, yet—

exactly where they stand....”).

While it would not be appropriate for this Court to take

judicial notice of these articles for the truth of the

matters asserted therein, see People v McKinney, 258

Mich App 157, 161 n 4; 670 NW2d 254 (2003), I would

take judicial notice of the fact that a plethora of articles

were published and that strong sentiments were in fact

expressed. The clear conclusion to be drawn is that the

public was, indeed, concerned about the privacy of their

political convictions and that their concerns were very

real. This evidence discredits the majority’s contention

that no evidence exists to support the public’s concern

over the privacy of their political information.

But further, these articles are not the only evidentiary

measure by which to determine whether the information

requested is of a personal nature. Legislative changes are

also indicative of the customs, mores, and ordinary views

of the community. See Mich Federation of Teachers, supra

at 677 n 59. It is not difficult to understand why the

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caselaw has adopted consideration of legislative changes

as an indicator of what a community considers to be

important: it is a basic principle of the separation of

powers doctrine that the people speak through their

elected representatives, not through the courts.

Here, a review of relevant legislative changes lends

additional credence to my view, and is additional evidence,

that an individual’s party preference information is of a

personal nature. Michigan’s election law has protected

this particular information from disclosure for nearly 15

years, since the 1995 FOIA provision was added to the

statute. See MCL 168.495a, as amended by 1995 PA 213;

MCL 168.615c(4), as added by 2007 PA 52. Equally sig-

nificant is the fact that the Legislature amended the

election law in 1995 from a closed primary system to an

open primary system in response to the public’s concern

regarding the privacy of their political convictions. MCL

168.495, as amended by 1995 PA 87; see also Senate Fiscal

Agency Bill Analysis, HB 4435, May 30, 1995. And, just a

few months later, the Legislature added the 1995 FOIA

provision in order to protect from disclosure party prefer-

ence information, previously collected or collected in the

future. MCL 168.495a, as amended by 1995 PA 213. The

1995 FOIA provision remained the law until the 2007

election statute repealed it and replaced it with its own

version that continued to protect party preference infor-

mation from disclosure through the FOIA. The 2007

election statute provided:

Except as otherwise provided in this section, the infor-

mation acquired or in the possession of a pubic body

indicating which participating political party ballot an

elector selected at a presidential primary is confidential,

exempt from disclosure under the [FOIA], and shall not be

disclosed to any person for any reason. [MCL 168.615c(4),

as added by 2007 PA 52.]

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Given these unequivocal legislative amendments and the

Legislature’s explicit decision to continue protecting from

disclosure party preference information, there can be no

clearer signal that the customs, mores, and ordinary views

of the community regard party preference as information

of a “personal nature.” See Mich Federation of Teachers,

supra at 677 n 59 (noting recent legislative changes as

indicative of a community’s mores).

As I have pointed out, the majority’s opinion largely

ignores this analysis and asserts that I have wrongly

considered a 1995 Senate Fiscal Agency bill analysis in

support of my conclusion that the Legislature changed

the law in reaction to the public’s outrage. However, the

majority overlooks, or chooses to ignore, the fact that

this analysis is not one of statutory interpretation,

where the traditional rules of construction would apply,

and would generally preclude the consideration of a

legislative bill analysis, but rather is an analysis

whether certain information should be considered of a

personal nature under the FOIA’s privacy exemption.

And our Supreme Court has directed that this inquiry

be undertaken with the mores, values, and ordinary

customs of the community in mind, which may include

a consideration of legislative changes. Thus, in my view,

the legislative changes, the legislative bill analysis, and

the various news articles, are some evidence of the

community’s values and mores, and are indicative of its

ordinary customs.

I must emphasize that the majority has taken a “hear

no evil, see no evil” approach to this matter by ignoring

the social and historical context in which these legisla-

tive changes were made. It is true that a Senate Fiscal

Agency analysis reflects the opinion of one legislative

analyst, not the Legislature. However, it does not logi-

cally follow that the Legislature had deaf ears to the

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ongoing discussion occurring in the public and that it

simply amended the election law randomly. Rather, the

clear inference is that the Legislature’s amendment at

that particular time, amidst the public debate, was in

reaction to the public’s concerns. The majority displays

its opinion in a vacuum. I would conclude, on the basis

of the foregoing, that an individual’s political prefer-

ence information is of a personal nature.

ii. PRIVACY INTEREST IN PERSONAL IDENTIFYING INFORMATION

The second privacy interest implicated in this matter

is the individual’s interest in protecting his or her

personal identifying information. Of initial importance

is the fact that information regarding a voter’s political

preference would be coupled with a voter’s name and

home address. In Mich Federation of Teachers, our

Supreme Court, noting the “checkered history” of con-

flicting jurisprudence on the issue whether home ad-

dresses and telephone numbers are of a personal na-

ture, held that personal identifying information,

including “home addresses and telephone numbers[,]

constitute private information about individuals.” Mich

Federation of Teachers, supra at 677 n 58. The Court

stated, “The potential abuses of an individual’s identi-

fying information, including his home address and

telephone number, are legion.” Id. at 677. As examples,

the Court cited unwelcome masses of junk mail and

telephone solicitations. Id. On the basis of this reason-

ing, the Court determined that university employees’

addresses and phone numbers was information of a

personal nature, even though employees had voluntar-

ily provided the university that information, and that

that information was not disclosable to the general

public through the FOIA. Id. at 682-683.

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Similarly, in United States Dep’t of Defense v Fed

Labor Relations Auth, 510 US 487, 500-501; 114 S Ct

1006; 127 L Ed 2d 325 (1994), the United States

Supreme Court considered the names and home ad-

dresses of nonunion employees to be private informa-

tion of which the employees had “some nontrivial

privacy interest in [its] nondisclosure....”Inthat case,

several unions were seeking the names and home

addresses of nonunion employees through the federal

FOIA statute. Id. at 489-490. The Court noted the

innumerous and unwanted intrusions into the home

that disclosure would result in, including unwanted

mail and possibly visits, and reasoned that it was

“reluctant to disparage the privacy of the home, which

is accorded special consideration in our Constitution,

laws, and traditions.” Id. at 501. Ultimately, the Court

did not release the records in light of the public’s

nonexistent interest in the records. Id. at 502.

The same concerns are at play in the instant case.

Disclosure of electors’ names, party preferences, and

home addresses would subject many individuals to

unwanted mass mailings and a deluge of junk mail.

Anyone in the general public, including commercial

vendors and other special interest groups, would be able

to access the information and would be able to solicit

electors through the mail or in person by going door-to-

door. Many individuals would find this intrusion into

their homes to be an unwanted annoyance and a hassle.

It is also not difficult to see, as I have already discussed,

how the party preference information in particular

could subject some individuals to unwanted attention,

discomfort, harassment, or retaliation. Given the fore-

going, and the Court’s decision in Mich Federation of

Teachers as well as the Supreme Court’s decision in

United States Dep’t of Defense, I would hold that voters’

names and home addresses, when coupled with their

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party preferences in the 2008 primary election, is per-

sonal information that is intimate and private, and is

undoubtedly of a “personal nature.”

iii. FERENCY v SECRETARY OF STATE

I also disagree with the majority’s conclusion, relying

on dicta from Ferency v Secretary of State, 190 Mich App

398; 476 NW2d 417 (1991), that the requested informa-

tion is not of a personal nature because an individual has

no privacy expectation in his or her party affiliation

voluntarily disclosed in a primary election. I respectfully

submit that the majority’s reliance on Ferency is mis-

placed.

In Ferency, the plaintiff sued alleging that Michigan’s

1988 election law violated several provisions of Michigan’s

Constitution. Relevant to this appeal was the plaintiff’s

argument that the 1988 election law violated the secrecy

of the ballot, Const 1963, art 2, § 4, because the 1988

election law required voters to declare their party prefer-

ence in order to vote in the primary. Ferency, supra at 413.

The Ferency Court disagreed. It reasoned that electors’

exact votes could not be ascertained by knowledge of an

elector’s party preference declaration and therefore there

was no violation of the right to a secret ballot. Id. at 414.

It further stated, in passing:

[P]rimaries remain primarily party functions and thus

there is a legitimate state interest in restricting access by

voters to the primary elections and, more to the point, in

requiring voters to publicly identify their party affiliation in

order to be eligible to vote in a primary election. That is,

because primary elections are primarily party functions, it

is not unreasonable to expect the voter to be willing to

disclose his party affiliation in order to participate in that

party’s internal operations, such as the selection of its

nominee for a particular office. This does not violate the

secrecy of the ballot, because there is no legitimate interest

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by the voter to shield his affiliation from a party where that

voter decides to participate in the party activities and

where the ballot remains secret once the voter gets in the

primary election booth. [Id. at 418 (emphasis added).]

The Ferency Court’s statements, while largely dicta,

indicate that electors have no privacy interest in their

party preference when they voluntarily decide to disclose

it to their party. These statements further suggest that the

individual’s privacy interest must be balanced against a

party’s legitimate interest in restricting voter access to its

primary elections, e.g., by preventing nonparty members

from hijacking the party by voting for the weaker party

candidate. Id. This latter concern implicates political

parties’ freedom of association in the context of primary

elections and balances that interest against electors’ in-

terest in the secrecy of the ballot. See, e.g., California

Democratic Party v Jones, 530 US 567, 583-585; 120 S Ct

2402; 147 L Ed 2d 502 (2000).

It is important to note,

however, that Ferency’s statements are not central to its

holding regarding the secrecy of the ballot.

California Democratic Party, which plaintiff also relies on, was a First

Amendment case that applied an analysis similar to Ferency. In that case,

several Californian political parties brought suit alleging that Califor-

nia’s “blanket” primary system violated their right to freedom of

association under the First Amendment. California Democratic Party,

supra at 571. This system, adopted by initiative Proposition 198, allowed

all Californian voters to vote on a ballot containing all the primary

candidates from all the political parties. Id. at 570. On certiorari to the

United States Supreme Court, the Court found that Proposition 198

violated political parties’ freedom of association by forcing association

with unaffiliated voters and was unconstitutional unless it was narrowly

tailored to advance a compelling state interest. Id. at 584-585. The state

of California asserted voters’ right to privacy as a compelling interest in

an attempt to justify Proposition 198. Id. at 584. The Supreme Court,

however, concluded that voters’ privacy interests in their party affilia-

tions when voting in a primary is not a compelling interest that would

justify California’s “blanket” primary system. Id. at 584-585. In deter-

mining that voters’ privacy did not constitute such a compelling interest,

the Court stated:

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I have no quarrel with the proposition that Ferency

stands for. However, Ferency does not address Michigan’s

FOIA statute. Instead, it addresses entirely different

claims and concepts than those advanced in this case.

Ferency addressed whether Michigan’s 1988 election law

violated the secrecy of the ballot protected by the Michi-

gan Constitution. It is true that voters’ “privacy” interests

were implicated; however, it arose as an issue ancillary to

the main thrust of the litigants’ claims and it was viewed

in the context of, and balanced against, political parties’

right to freedom of association. As such, how privacy

conceptually relates to the underlying claims in Ferency is

entirely different from how that concept relates to the

claim in this case. This is because the interests at stake in

Ferency are not at stake in the instant matter; political

parties’ interests in controlling who votes in their prima-

ries are not implicated under the FOIA. Thus, Ferency is

simply not instructive on whether an elector has a legiti-

mate privacy interest in shielding political party prefer-

ence information from the general public at large and is

not indicative, under a FOIA analysis, whether such

information is of a personal nature. Thus, it is my view

that Ferency is not controlling in the present matter and

is largely irrelevant.

As for the protection of privacy: The specific privacy interest at

issue is not the confidentiality of medical records or personal

finances, but confidentiality of one’s party affiliation. Even if (as

seems unlikely) a scheme for administering a closed primary could

not be devised in which the voter’s declaration of party affiliation

would not be public information, we do not think that the State’s

interest in assuring the privacy of this piece of information in all

cases can conceivably be considered a “compelling” one. If such

information were generally so sacrosanct, federal statutes would

not require a declaration of party affiliation as a condition of

appointment to certain offices. [Id. at 585.]

Thus, like the Ferency case, California Democratic Party considers

electors’ privacy interests in primary elections, but only through the lens

of the First Amendment.

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However, to the limited extent that Ferency is instruc-

tive, its rationale does not support a conclusion that voters

have no privacy interest in their political preferences

declared for purposes of voting in a primary. Ferency

balanced voters’ privacy interests against political parties’

interests in controlling the type of voters who vote in their

primaries. It also indicated that voters have no privacy

interest when they consent to disclosure of their political

party preferences to their parties. Let me be clear that I

agree with this statement; certainly, a voter’s name, home

address, and party preference is not of a private nature

when the voter consents to its disclosure to his or her

party of choice. However, this does not translate to mean

that a voter has no legitimate privacy interest in prevent-

ing the disclosure of that same information to others or to

the general public. Here, it is the public’s right to know

the information and to hold the government accountable

for its actions that must be balanced against individuals’

privacy interests. A voter may, understandably, refuse to

disclose that information to an employer, a friend, or even

a family member. “The disclosure of information of a

personal nature into the public sphere in certain instances

does not automatically remove the protection of the pri-

vacy exemption and subject the information to disclosure

in every other circumstance.” Mich Federation of Teach-

ers, supra at 680; see also United States Dep’t of Defense,

supra at 500 (“An individual’s interest in controlling the

dissemination of information regarding personal matters

does not dissolve simply because that information may be

available to the public in some form.”). This nuance is one

that the majority has overlooked. I would conclude that

the information requested is of a personal nature.

B. UNWARRANTED INVASION OF PRIVACY

But simply because the information sought is of a

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personal nature does not necessarily compel the conclu-

sion that its disclosure is prohibited. Rather, it is the

second prong of the test announced in Mich Federation

of Teachers that must be considered: whether public

disclosure of the party preference information coupled

with voters’ names and addresses would constitute a

“clearly unwarranted invasion” of an individual’s pri-

vacy. Mich Federation of Teachers, supra at 675. This

inquiry requires “balanc[ing] the public[’s] interest in

disclosure against the interest [the Legislature] in-

tended the exemption to protect[.]... [T]he only rel-

evant public interest in disclosure to be weighed in this

balance is the extent to which disclosure would serve

the core purpose of the FOIA, which is contributing

significantly to public understanding of the operations

or activities of the government.” Id. at 673 quoting

Mager, supra at 145, quoting United States Dep’t of

Defense, supra at 495 (quotation marks omitted). Under

the circumstances of this case, special emphasis must be

placed on the fact that it is the public’s interest that is

to be weighed against individuals’ privacy interests—

the special interests of the requester puts it in no better

position than a member of the general public. See

United States Dep’t of Defense, supra at 499-500. In

other words, the identity of the requester and the re-

quester’s interest in the information is irrelevant,asis

the requestor’s initial and future use of that informa-

tion. State Employees Ass’n, supra at 121 (opinion by

AVANAGH

, J.).

Here, defendants concede that the Secretary of

State’s office has released the names and addresses of

registered voters. And, although this information is of a

personal nature, see Mich Federation of Teachers, supra

at 677 n 58, it is clear that disclosure of these names and

addresses alone is a warranted invasion of personal

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privacy. Namely, disclosure of that information is nec-

essary to inform the general public whether voters are

properly registered and whether they are voting in the

proper local precinct. Disclosure of such information, if

requested, is necessary to hold the government account-

able for the integrity and purity of this state’s elections.

However, the public’s interest in the disclosure of

voters’ names and addresses coupled with their party

preference information is negligible. Contrary to the

majority’s conclusion, I simply fail to see how disclosure

of this information in this form is necessary to shed

light on the government’s operations. Indeed, disclo-

sure would reveal whether the Secretary of State’s

office actually performed the task required of it under

2007 PA 52. This result, however, could just as easily be

obtained by releasing redacted versions of the records,

i.e., by redacting voter’s names and addresses and

releasing the ballot selections alone.

Given the forego-

ing, it is likely that plaintiff is not asking for the records

The majority asserts that disclosure of the requested information

“would inform the public to what extent the Secretary and the various

local clerks carried out the requirements of 2007 PA 52.” It then states,

“[T]here is no other way by which these individuals can be held account-

able for their implementation of a then-valid statute.” (Emphasis added.)

This position is simply wrong. Logistically, the same goal can be accom-

plished without intruding on individual’s privacy. The Secretary of

State’s office has already released the names and addresses of those

individuals who voted in the 2008 primary. This information allows the

general public to make certain that the state ensured that individuals

voted in the proper precinct, but it would not show, for example, whether

the number of voting Democrats matches the number reported, and vice

versa for Republicans. However, the release of the same records, contain-

ing redacted names and addresses but showing the party ballot selected,

would have the result of showing that the correct, or incorrect, numbers

voted in each primary. Ultimately, the same goal is reached without

violating individuals’ privacy—the general public would be able to know

whether election officials properly carried out their task under 2007 PA

52. Nothing additional would be gained by releasing the information in

the form requested.

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to find out “what the government is up to” but to obtain

the names and addresses of individuals affiliated with

particular political parties for its business purposes.

The requester’s identity and special interests are com-

pletely irrelevant to a FOIA analysis. State Employees

Ass’n, supra at 121. Further, “disclosure of information

about private citizens that is accumulated in various

governmental files but that reveals little or nothing

about an agency’s own conduct [would not advance the

core purpose of FOIA].” Mager, supra at 145 (quotation

marks and citation omitted). And, in the absence of any

compelling public interest in the information in the

form requested, “supplying lists of voters to private

parties... [smacks of] an abuse of the elective fran-

chise.” Grebner v Michigan, 480 Mich 939, 944 (2007)

AVANAGH

, J., dissenting).

Finally, weighing this virtually nonexistent public

interest in disclosure against electors’ interests in con-

trolling their personal information dictates the conclu-

sion that disclosure would be an unwarranted invasion

of voters’ privacy. Because the public’s interest in the

information is small, even a very slight privacy interest

would suffice to outweigh the public’s interest in the

records. Thus, it is not necessary to quantify the privacy

interest involved. However, I would go so far as to

surmise that the interest involved is, at the very least, a

moderate to strong one. As I have already discussed,

electors have an interest in avoiding harassment, re-

prisal, or retaliation that may result from public disclo-

sure of such information. Obviously, some electors will

have a more heightened interest in keeping this infor-

mation private than others. For example, disclosure

could potentially be particularly damaging to a public

official or to an employee of a nonprofit political orga-

nization. Moreover, many voters may wish to avoid the

perceived annoyance and hassle of receiving large

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amounts of junk mail and solicitations that would result

from the disclosure of their particular political convic-

tions. Indeed, the privacy interest implicated here is far

from insubstantial in consideration of the fact that the

information would be accessible to all members of the

public, including commercial advertisers and other so-

licitors. I would follow the lead of the United States

Supreme Court and avoid a decision that would dispar-

age the privacy of the home. United States Dep’t of

Defense, supra at 501. Accordingly, I would conclude

that the public’s interest is outweighed by the privacy

interest the Legislature intended to protect under MCL

15.243(1)(a).

I would reverse.

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PEOPLE v CORR

Docket No. 289330. Submitted January 6, 2010, at Lansing. Decided

January 19, 2010. Approved for publication March 9, 2010, at 9:10

a.m.

Linda S. Corr was charged in the 56A District Court with two counts

of assaulting, resisting, and obstructing a police officer, MCL

750.81d(1). The district court, Harvey J. Hoffman, J., refused to

bind defendant over on the charges, finding that the police

unlawfully detained defendant and that she did not refuse to obey

a lawful command. The Eaton Circuit Court, Calvin E. Oster-

haven, J., affirmed, holding that, although defendant was illegally

detained by the police, the unlawful arrest did not preclude the

prosecution. Instead, the circuit court held that the illegal arrest

required application of the exclusionary rule to bar the officers’

testimony and that, without that testimony, probable cause could

not be established. The prosecution appealed by leave granted.

The Court of Appeals held:

1. The district court erred by deciding not to bind defendant

over for trial. The evidence established probable cause to believe

that defendant committed the offense. Defendant’s conduct con-

stituted the type of conduct specifically prohibited under MCL

750.81d(1), regardless of the lawfulness of the police officers’

commands to defendant to stay in the vehicle.

2. Defendant knew or had reason to know that the persons she

assaulted were police officers performing duties in their official

capacity.

3. Although it was evident that the criminal investigation had

likely been completed by the time defendant got out of the vehicle

and assaulted the officers, the officers were still performing

noninvestigatory official duties at the time. Defendant had reason-

able cause to belief, under the circumstances, that the police

officers were engaged in the performance of their duties in their

official capacity when defendant failed to comply with their

commands and assaulted them.

4. Whether defendant’s continued detention in the vehicle by

the officers was lawful depends on its reasonableness. It was

2010] P

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499

reasonable, under the circumstances, for the officers to command

defendant to remain in the vehicle. The officers’ commands to

remain in the vehicle were lawful. There was no bad faith or

misconduct on the part of the officers.

5. Even if the detention of defendant were unlawful, the

circumstances do not warrant exclusion of the officers’ testimony.

The officers did not exploit the detention to obtain evidence, act in

bad faith, or use the detention as a tool to obtain evidence from

defendant. The exclusionary rule does not bar the introduction of

evidence of independent crimes directed at police officers as a

reaction to an illegal arrest or search. The order of the trial court

must be reversed and the matter must be remanded for the

reinstatement of the charges.

Reversed and remanded.

1. C

RIMINAL

AW —

SSAULTING

OLICE

FFICERS —

FFICER

’

UTIES

It is illegal for a person to assault, batter, resist, or obstruct a police

officer, even if the officer is taking unlawful action, as long as the

officer’s actions are done in the performance of the officer’s duties

(MCL 750.81d[1]).

2. C

RIMINAL

AW —

SSAULTING

OLICE

FFICERS —

FFICER

’

UTIES

The statute that makes it a crime for an individual to assault, batter,

wound, resist, obstruct, oppose, or endanger a person who the

individual knows or has reason to know is performing his or her

duties as a police officer encompasses all the duties of a police

officer as long as the officer is acting in the performance of those

duties (MCL 750.81d[1]).

3. S

EARCHES AND

EIZURES —

RAFFIC

TOPS —

EMPORARY

EIZURES

The temporary seizure of the driver and passengers of a vehicle

stopped by the police ordinarily continues, and remains reason-

able, for the duration of the stop, which normally ends when the

police have no further need to control the scene and inform the

driver and passengers that they are free to leave.

4. E

VIDENCE —

XCLUSIONARY

ULE

The exclusionary rule does not act to bar the introduction of

evidence of independent crimes directed at police officers as a

reaction to an illegal arrest or search.

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

Solicitor General, Jeffrey L. Sauter, Prosecuting Attor-

500 287 M

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ney, William M. Worden, Senior Assistant Prosecuting

Attorney, and D. Sunny Matz, Assistant Prosecuting

Attorney, for the people.

Kronzek & Cronkright PLLC (by Steven A. Freeman

and Brandy J. Thompson) for defendant.

Before: C

AVANAGH

,P.J., and F

ITZGERALD

and S

HAPIRO

JJ.

URIAM

. The prosecution appeals by leave

granted the circuit court’s order affirming the district

court’s decision not to bind over defendant for trial on

two counts of assaulting, resisting, and obstructing a

police officer, MCL 750.81d(1). We reverse and remand

for reinstatement of the charges.

The charges in this case stem from defendant’s

violent behavior against police officers after a pickup

truck in which she was a passenger was stopped on

suspicion that it was being operated by a drunk driver.

Defendant’s son was driving the truck and both he and

defendant were intoxicated. Defendant got out of the

pickup truck and disobeyed the officers’ instructions to

return to the vehicle. She kicked, shoved, and elbowed

the officers. The facts were disputed regarding whether

this conduct occurred while defendant’s son was sitting

in the back of a patrol car after having been arrested, or

after he had been taken to jail.

Although a fair reading of the testimony indicates that defendant’s

behavior began before her son’s removal from the scene, at the prelimi-

nary examination, the district court summarized the facts, to which the

parties stipulated, to indicate that defendant’s actions only occurred after

her son had been removed. For this opinion, we have relied on the facts

as stipulated at the preliminary examination. However, on remand, the

parties are not precluded from arguing, consistent with the evidence, that

some of the actions took place before the son’s removal from the scene.

2010] P

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The district court found no probable cause to bind

over defendant for resisting or obstructing police offic-

ers because the police unlawfully detained defendant.

The district court concluded that defendant did not

“obstruct” as defined in the statute because she did not

refuse to obey a lawful command to return to the truck.

The circuit court affirmed on different grounds. The

circuit court found that there was probable cause to

believe that defendant’s actions satisfied the elements

of resisting or obstructing a police officer. The court

agreed that defendant was illegally detained, but ac-

knowledged that an unlawful arrest does not preclude

prosecution for resisting and obstructing a police of-

ficer. Instead, the circuit court concluded that the illegal

arrest required application of the exclusionary rule to

bar the officers’ testimony, without which probable

cause could not be established. The prosecution now

appeals.

In reviewing a decision to bind a defendant over for

trial, we apply the following standards:

A magistrate’s ruling that alleged conduct falls within

the scope of a criminal statute is a question of law reviewed

[de novo] for error, and a decision to bind over a defendant

is reviewed for abuse of discretion. In reviewing the district

court’s decision to bind over a defendant for trial, a circuit

court must consider the entire record of the preliminary

examination, and it may not substitute its judgment for

that of the magistrate. Reversal is appropriate only if it

appears on the record that the district court abused its

discretion.... Similarly, this Court reviews the circuit

court’s decision de novo to determine whether the district

court abused its discretion. [People v Orzame, 224 Mich

App 551, 557; 570 NW2d 118 (1997) (citations omitted).]

“The district court must bind over a defendant if the

evidence presented at the preliminary examination es-

tablishes that a felony has been committed and there is

502 287 M

ICH

499 [Mar

probable cause to believe that the defendant committed

the crime.” People v Terry, 224 Mich App 447, 451; 569

NW2d 641 (1997). “Circumstantial evidence and rea-

sonable inferences arising from the evidence are suffi-

cient to support a bindover.” Id.

After reviewing the testimony of the officers at the

preliminary examination, we find that the district court

erred in its decision not to bind defendant over for trial

because the evidence established probable cause to

believe that defendant committed the offense. Under

MCL 750.81d(1), the elements required to establish

criminal liability are: (1) the defendant assaulted, bat-

tered, wounded, resisted, obstructed, opposed, or en-

dangered a police officer, and (2) the defendant knew or

had reason to know that the person that the defendant

assaulted, battered, wounded, resisted, obstructed, op-

posed, or endangered was a police officer performing his

or her duties. MCL 750.81d(1); MCL 750.81d(7)(b)(i);

People v Ventura, 262 Mich App 370, 374-375; 686

NW2d 748 (2004). “ ‘Obstruct’ includes the use or

threatened use of physical interference or force or a

knowing failure to comply with a lawful command.”

MCL 750.81d(7)(a).

First, testimony by the police officers who were at the

scene established probable cause to believe that defen-

dant assaulted, battered, resisted, or obstructed a police

officer. The testimony revealed that defendant pushed,

shoved, elbowed, and kicked the officers after they

repeatedly commanded or warned her to stay in the

vehicle. Rather than submitting, defendant disobeyed

the officers’ commands and aggressively came into

physical contact with them (1) when she got out of the

vehicle and “pushed” an officer in an attempt to get by

the officer, (2) when she struggled with and elbowed the

officer when the officer was trying to get her back into

2010] P

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503

the vehicle, and (3) when she struggled with and kicked

and shoved the officers who were trying to confine her

during her arrest. We agree with the circuit court that

defendant’s conduct constituted the type of conduct

specifically prohibited under MCL 750.81d(1), regard-

less of the lawfulness of the officers’ commands to stay

in the vehicle. Under MCL 750.81d(1), it is illegal to

assault, batter, resist, or obstruct an officer even if the

officer is taking unlawful action, as long as the officer’s

actions are done in the performance of the officer’s

official duties. Ventura, 262 Mich App at 377.

The testimony also provided credible evidence that

defendant knew or had reason to know that the person

that she assaulted, battered, resisted, or obstructed was

a police officer performing his or her duties. The phrase

“has reason to know” “requires the fact-finder to en-

gage in an analysis to determine whether the facts and

circumstances of the case indicate that when resisting,

defendant had ‘reasonable cause to believe’ the person

he was assaulting was performing his or her duties.”

People v Nichols, 262 Mich App 408, 414; 686 NW2d 502

(2004). Given that the vehicle was pulled over during a

traffic stop by a patrol car with activated emergency

lights, additional officers arrived on the scene to assist

the officer, and the officers performed ordinary police

functions during the stop, such as checking defendant’s

identification, performing sobriety tests on the driver,

arresting the driver, maintaining control over the scene,

ordering defendant to remain in the vehicle, and admin-

istering breathalyzer tests in an attempt to locate a

sober driver to move the vehicle from the roadway,

defendant knew or had reason to know that the persons

she assaulted were police officers performing duties in

their official capacity. Therefore, defendant’s conduct

provided probable cause to believe that defendant vio-

lated MCL 750.81d(1).

504 287 M

ICH

499 [Mar

We do not agree with the district court’s reasoning

that defendant’s assaultive conduct could not be used to

establish liability under MCL 750.81d(1) because the

officers no longer possessed the lawful authority to

command her to stay in the vehicle after they completed

the criminal investigation. The statutory language of

MCL 750.81d(1) is not so limiting. To the contrary, the

unambiguous language, “an individual who assaults,

batters, wounds, resists, obstructs, opposes, or endan-

gers a person who the individual knows or has reason to

know is performing his or her duties” (emphasis added),

shows that the Legislature intended that the statute

encompass all the duties of a police officer as long as the

officer is acting in the performance of those duties. See

Ventura, 262 Mich App at 375-376. Here, even though it

was evident that the criminal investigation had likely

been completed by the time defendant got out of the

vehicle and assaulted the officers, the officers were still

performing duties at the scene, including maintaining

the peace and controlling the scene, locating a sober

driver to move the vehicle from the roadway, and

protecting the safety of defendant, especially consider-

ing her intoxicated state and the inclement weather

conditions. Such noninvestigatory duties have been

recognized by our courts as official duties of the police.

See People v Davis, 442 Mich 1, 20; 497 NW2d 910

(1993) (“The police perform a variety of functions that

are separate from their duties to investigate and solve

crimes,” which are “sometimes categorized... [as]

‘community caretaking’ or ‘police caretaking’ func-

tions,” including, but not limited to, the impoundment

of vehicles, inventory searches, and rendering aid or

assistance to persons in distress); People v Vasquez, 465

Mich 83, 88; 631 NW2d 711 (2001), quoting People v

Little, 434 Mich 752, 759; 456 NW2d 237 (1990) (“ ‘[A]n

2010] P

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505

officer’s efforts to “keep the peace” include ordinary

police functions that do not directly involve placing a

person under arrest.’ ”).

Accordingly, under the circumstances of this case,

defendant had “reasonable cause to believe” that the

officers’ conduct in maintaining the peace at the scene,

attempting to move the vehicle from the roadway, and

protecting defendant’s safety, constituted the perfor-

mance of their duties in their official capacity when she

failed to comply with their commands to stay in the

vehicle and physically assaulted them. Nichols, 262

Mich App at 414. The district court abused its discre-

tion by refusing to bind defendant over for trial on the

assaulting, resisting, and/or obstructing charges.

Orzame, 224 Mich App at 557.

Although we agree with the circuit court that defen-

dant’s conduct established probable cause to support

her bindover for trial, we find that the court erred in its

determination that the officers’ testimony must be

excluded as the “fruit” of defendant’s illegal detention.

We review de novo “whether the Fourth Amendment

was violated and whether an exclusionary rule applies.”

People v Hyde, 285 Mich App 428, 438; 775 NW2d 833

(2009), citing People v Fletcher, 260 Mich App 531, 546;

679 NW2d 127 (2004).

“Both the United States and the Michigan Constitu-

tions guarantee the right against unreasonable

searches and seizures.” People v Snider, 239 Mich App

393, 406; 608 NW2d 502 (2000), citing US Const, Am IV;

Const 1963, art 1, § 11. “Generally stated, the test for

what constitutes a seizure is whether, ‘in view of all the

circumstances surrounding the incident, a reasonable

person would have believed that he was not free to

leave.’ ” People v Bolduc, 263 Mich App 430, 438; 688

NW2d 316 (2004) (citations omitted). Whether defen-

506 287 M

ICH

499 [Mar

dant’s continued detention in the vehicle was lawful

depends on its reasonableness. Snider, 239 Mich App at

406. “The benchmark for satisfaction of Fourth Amend-

ment rights is reasonableness, and reasonableness re-

quires a fact-specific inquiry that is measured by exam-

ining the totality of the circumstances.” Hyde, 285 Mich

App at 436.

The officers’ commands to stay in the vehicle consti-

tuted a seizure under the Fourth Amendment because a

reasonable person in defendant’s situation would have

believed that she was not free to leave. Bolduc, 263

Mich App at 438, 441. However, under the circum-

stances of this case, we find that it was reasonable, for

the officer’s safety as well as for defendant’s safety, for

the officers to command defendant to remain in the

vehicle while they completed their noninvestigatory

duties at the traffic stop, particularly considering that

defendant was intoxicated and aggressive toward the

officers during the stop, bystanders had arrived on the

scene, and the weather conditions were dangerous.

Under these circumstances, the officers, still had a

need to maintain control over the scene even though

the driver had been arrested and secured in the patrol

car. Arizona v Johnson, 555 US 323; 129 S Ct 781,

788; 172 L Ed 2d 694, 704-705 (2009). It is “reason-

able for passengers to expect that a police officer at

the scene of a crime, arrest, or investigation will not

let people move around in ways that could jeopardize

his safety.” Brendlin v California, 551 US 249, 258;

127 S Ct 2400; 168 L Ed 2d 132 (2007). Furthermore,

“[t]he temporary seizure of driver and passengers

ordinarily continues, and remains reasonable, for the

duration of the stop,” which normally “ends when the

police have no further need to control the scene, and

inform the driver and passengers they are free to

leave.” Johnson, 555 US at 333. Accordingly, we

2010] P

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507

find the officers’ commands to stay in the vehicle, which

resulted in defendant’s detention beyond the time of

the driver’s arrest but before the time that the officers

had completed their duties at the scene, to be lawful.

Moreover, we find no evidence of bad faith or miscon-

duct on the part of the officers to indicate that defen-

dant was being detained for the purpose of searching for

or obtaining evidence against her. Instead, by ordering

defendant to stay in the vehicle, the officers were

merely attempting to keep defendant safe and maintain

order and control over the scene so they could perform

their noninvestigatory police functions.

Finally, even if defendant’s detention had been un-

lawful, we conclude that the circumstances do not

warrant the exclusion of the officers’ testimony in this

case. “[T]he exclusionary rule is a harsh remedy de-

signed to sanction and deter police misconduct where it

has resulted in a violation of constitutional rights” and

“should be used only as a last resort.” People v Frazier,

478 Mich 231, 247; 733 NW2d 713 (2007) (quotation

marks and citations omitted). “In determining whether

exclusion is proper, a court must evaluate the circum-

stances of the case in the light of the policy served by

the exclusionary rule....”Id. at 249 (quotation marks

and citations omitted).

The mere fact of an illegal arrest does not per se

require the suppression of evidence. People v Kelly, 231

Mich App 627, 634; 588 NW2d 480 (1998). “It is only

when an ‘unlawful detention has been employed as a

tool to directly procure any type of evidence from a

It was evident from the testimony that, during the detention, the

officers diligently pursued their investigation and did not exceed the

original justification for the stop. People v Chambers, 195 Mich App 118,

123; 489 NW2d 168 (1992), citing United States v Sharpe, 470 US 675,

686; 105 S Ct 1568; 84 L Ed 2d 605 (1985).

508 287 M

ICH

499 [Mar

detainee’ that the evidence is suppressed under the

exclusionary rule.” Id., quoting People v Mallory, 421

Mich 229, 240-241; 365 NW2d 673 (1984) (emphasis in

original).

Here, there is no indication from the testimony that

the officers exploited the detention to obtain evidence,

acted in bad faith, or that the detention was employed

as a tool to procure evidence from defendant. Instead, it

is apparent that the officers detained defendant to

maintain control of the scene and protect their safety as

well as defendant’s safety while they finished perform-

ing their duties at the scene. Furthermore, the evidence

at issue (the officers’ testimony) was obtained when

defendant, subsequent to the detention, illegally as-

saulted, battered, resisted, or obstructed the officers’

performance of their duties. MCL 750.81d(1). As we

have previously held:

[T]he exclusionary rule does not act to bar the introduc-

tion of evidence of independent crimes directed at police

officers as a reaction to an illegal arrest or search. Any

other conclusion would effectively give a person who has

been the victim of an illegal seizure the right to employ

whatever means available, no matter how violent, to elude

capture. [People v Daniels, 186 Mich App 77, 82; 463 NW2d

131 (1990) (citation omitted).]

We know of no law that permits a suspect to avoid

prosecution for crimes committed when illegally de-

tained, and decline to adopt such a rule. Defendant did

not have a right, based on the alleged unlawful deten-

tion, to resist and obstruct the officers in the discharge

of their duties. Ventura, 262 Mich App at 376-378. Once

defendant used force against the officers, they had

probable cause to arrest her under MCL 750.81d(1).

Pursuant to this lawful arrest, any evidence seized

would be admissible. See People v Lambert, 174 Mich

2010] P

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509

App 610, 617-618; 436 NW2d 699 (1989) (holding that

where there is “no exploitation of the primary illegal-

ity..., the ‘fruit of the poisonous tree’ doctrine [is]

inapplicable” to a subsequent lawful arrest).

Reversed and remanded for reinstatement of the

charges. We do not retain jurisdiction.

510 287 M

ICH

499 [Mar

TINNIN v FARMERS INSURANCE EXCHANGE

Docket No. 286141. Submitted January 5, 2010, at Lansing. Decided

February 2, 2010. Approved for publication March 11, 2010, at

9:00.

Minnie Tinnin, as personal representative of the estate of Dolphus

Tinnin, deceased, brought an action in the Wayne Circuit Court,

John A. Murphy, J., against Farmers Insurance Exchange, seeking

benefits under the no-fault motor vehicle insurance act, MCL

500.3101 et seq., for injuries sustained when Dolphus was struck

by an automobile while he was crossing the street. Dolphus died

two years after the accident. At trial, plaintiff sought to recover, in

part, the cost of four office visits related to physical medicine and

rehabilitation (PM&R) treatment and $90,000 for attendant care

services. The jury determined that plaintiff was entitled to $1,235

for the PM&R bills and awarded plaintiff $218.95 in interest for

those overdue benefits. The jury declined to award any benefits for

attendant care. The trial court granted plaintiff’s motion for

no-fault attorney fees and awarded plaintiff $57,690 in attorney

fees and $9,651.67 in taxable costs. Defendant appealed the award

of attorney fees and costs.

The Court of Appeals held:

1. The trial court did not clearly err by determining that

defendant acted unreasonably in refusing to reimburse plaintiff

for Dolphus’s PM&R treatment in the amount of $1,235. Although

an insurer may reasonably rely on the medical opinion of its

physicians and the independent medical evaluations of those

physicians, here defendant simply failed to clarify the results

provided in a doctor’s independent medical evaluation that defen-

dant relied on to deny plaintiff’s claim for PM&R treatment

expenses.

2. The trial court did not abuse its discretion by awarding the

full amount of attorney fees and costs sought by plaintiff. The trial

court did not clearly err by finding that Dolphus’s PM&R treat-

ment was sufficiently related to his closed head injury. The trial court

did not abuse its discretion by refusing to apportion plaintiff’s award

of attorney fees to reflect the time spent in pursuit of the successful

PM&R claim and the time spent pursuing the unsuc-

2010] T

INNIN V

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511

cessful attendant care services claim. MCL 500.3148(1) does not

unambiguously require such apportionment.

3. The trial court did not abuse its discretion by awarding

plaintiff attorney fees. While it is within the discretion of the trial

court to adjust the award of attorney fees in light of the results

achieved, it is not required to do so as long as the ultimate award

remains reasonable.

4. The trial court did not abuse its discretion by awarding

plaintiff the costs of procuring the expert testimony presented by

plaintiff.

Affirmed.

RIAL —

TTORNEY

EES —

DJUSTMENT OF

WARDS

Although it is within a trial court’s discretion to adjust an award of

attorney fees in light of the result achieved, it is not required to do

so as long as the ultimate award remains reasonable.

Logeman, Iafrate & Pollard, P.C. (by James A.

Iafrate), for plaintiff.

Cory & Associates (by Patrick W. Bennett) for defen-

dant.

Before: B

ECKERING

,P.J., and M

ARKEY

and B

ORRELLO

JJ.

URIAM

. Defendant appeals by right the circuit

court’s judgment awarding plaintiff attorney fees pur-

suant to MCL 500.3148(1) and taxable costs pursuant

to MCR 2.625(A)(1). We affirm. This appeal has been

decided without oral argument pursuant to MCR

7.214(E).

Dolphus Tinnin was struck by a car as he crossed a

street. At the time, Tinnin was 57 years old and resided

with his mother. Tinnin was treated for bone fractures

in his right leg and a possible closed head injury. A

neuropsychological evaluation found that Tinnin suf-

fered from mild mental retardation and borderline

intelligence and that he had suffered a mild closed head

512 287 M

ICH

511 [Mar

injury in the accident. For approximately 2

years

after the accident, defendant reimbursed Tinnin for the

cost of attendant care services, which were primarily

provided by Tinnin’s mother, and for other medical

expenses. Later, defendant discontinued Tinnin’s ben-

efits after obtaining the results of two independent

medical evaluations (IME). Defendant denied Tinnin’s

claims for physical medicine and rehabilitation (PM&R)

treatment on the basis of an IME performed by Dr.

Nathan Gross, who opined that Tinnin did not require

ongoing physical therapy, but that it would have been

reasonable for Tinnin to continue to see a PM&R

specialist to monitor his condition on an “as needed”

basis. At trial, defendant’s claims adjuster agreed that

the discontinuation of Tinnin’s PM&R benefits was

improper in light of Dr. Gross’s testimony that such

treatment would have been reasonable on an “as

needed” basis. Defendant denied Tinnin’s claims for

attendant care services on the basis of an IME per-

formed by Dr. Manfred Greiffenstein, who believed that

Tinnin’s need for supervision resulted from Tinnin’s

pre-existing borderline intelligence and not from inju-

ries suffered in the accident.

Tinnin filed suit seven months after the accident,

but the case did not go to trial until nearly three years

after the accident, evidently because the parties en-

gaged in multiple settlement conferences and facilita-

tion and adjourned the trial date several times. Appar-

ently, defendant did not make a settlement offer.

At trial, plaintiff sought to recover the cost of four

office visits with Dr. Ifey Ilechukwu related to PM&R

Dolphus Tinnin died just over two years after the accident. Minnie

Tinnin, Dolphus Tinnin’s mother, was appointed personal representative

of his estate. “Plaintiff” hereinafter refers to the personal representative

of Dolphus Tinnin’s estate.

2010] T

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513

treatment. Plaintiff also sought more than $90,000 for

attendant care services. In support of her claim for

attendant care, plaintiff presented the testimony of a

psychiatrist and a psychologist, both of whom opined

that Dolphus suffered a closed head injury in the

accident and that attendant care would be appropriate.

The jury determined that plaintiff was entitled to

payment of Dolphus’s PM&R bills, and awarded her

$1,235. The jury also determined that those benefits were

overdue as defined by MCL 500.3142(2), and awarded

plaintiff $218.95 in no-fault interest. The jury declined to

award plaintiff any benefits for attendant care.

The trial court granted plaintiff’s motion for no-fault

attorney fees under MCL 500.3148(1), concluding that

defendant’s failure to pay the PM&R expenses was

unreasonable. Plaintiff sought $57,690 in attorney fees,

and $9,651.67 in taxable costs. Defendant argued that

plaintiff’s request for attorney fees was excessive in

light of the verdict, and that in excess of $7,000 of the

taxable costs plaintiff sought related to her unsuccess-

ful claim for attendant care and should not be granted.

The trial court granted plaintiff the full amount of

attorney fees and costs requested.

A trial court’s award of attorney fees under MCL

500.3148(1) presents a mixed question of law and fact.

Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552

(2008). “What constitutes reasonableness is a question

of law, but whether the defendant’s denial of benefits is

reasonable under the particular facts of the case is a

question of fact.” Id. We review questions of law de

novo, and review a trial court’s findings of fact for clear

error. Id. “A decision is clearly erroneous where, al-

though there is evidence to support it, the reviewing

court is left with a definite and firm conviction that a

mistake has been made.” Kitchen v Kitchen, 465 Mich

514 287 M

ICH

511 [Mar

654, 661-662; 641 NW2d 245 (2002). We review a trial

court’s award of attorney fees and costs for an abuse of

discretion. Moore v Secura Ins, 482 Mich 507, 516; 759

NW2d 833 (2008). “An abuse of discretion occurs when

the trial court’s decision is outside the range of reason-

able and principled outcomes.” Id.

The no-fault act, MCL 500.3101 et seq., was intended

to provide insured persons who have sustained injuries

in automobile accidents with assured, adequate, and

prompt compensation for certain economic losses.

Shavers v Attorney General, 402 Mich 554, 578-579; 267

NW2d 72 (1978). To ensure prompt payments to the

insured, the act includes a provision for attorney fees.

McKelvie v Auto Club Ins Ass’n, 203 Mich App 331, 335;

512 NW2d 74 (1994). MCL 500.3148(1) provides:

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.

In Moore, our Supreme Court explained the statutory

prerequisites that must be met before attorney fees may

be awarded under MCL 500.3148(1):

First, the benefits must be overdue, meaning “not paid

within 30 days after [the] insurer receives reasonable proof

of the fact and of the amount of loss sustained.” MCL

500.3142(2). Second, in postjudgment proceedings, the trial

court must find that the insurer “unreasonably refused to

pay the claim or unreasonably delayed in making proper

payment.” MCL 500.3148(1). [Moore, 482 Mich at 517.]

An insurer’s refusal to pay benefits or delay in making

payment creates a rebuttable presumption of unreason-

ableness, and the insurer bears the burden of justifying

2010] T

INNIN V

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515

the refusal or delay. McKelvie, 203 Mich App at 335.

“The insurer can meet this burden by showing that the

refusal or delay is the product of a legitimate question

of statutory construction, constitutional law, or factual

uncertainty,” Ross, 481 Mich at 11, including bona fide

questions whether a particular medical procedure is

reasonably necessary. McCarthy v Auto Club Ins Ass’n,

208 Mich App 97, 104-105; 527 NW2d 524 (1994).

On appeal, defendant argues that it did not act

unreasonably by denying plaintiff’s entire claim be-

cause a bona fide factual dispute existed regarding

causation and the amount of benefits owed to plaintiff,

if any. We disagree.

“[A]n insurer’s initial refusal to pay no-fault benefits

can be deemed reasonable even if it is later determined

that the insurer was required to pay those benefits.”

Moore, 482 Mich at 526. But, if it is determined that an

insurer is not liable for no-fault benefits, they cannot be

overdue, and the insurer’s initial refusal or delay of

payments cannot be deemed unreasonable. Id.Inthe

instant case, the trial court found that defendant’s

denial of benefits was unreasonable only with respect to

the $1,235 related to Dolphus’s PM&R treatment and

did not opine about the reasonableness of defendant’s

denial of plaintiff’s claim for attendant care services.

Defendant denied plaintiff reimbursement of the

PM&R costs solely on the basis of Dr. Gross’s report.

While our Supreme Court has held that an insurer may

reasonably rely on the medical opinion of its physicians

and the IMEs the physicians perform, id. at 522,

defendant simply failed to clarify the results provided in

Dr. Gross’s report. Dr. Gross’s report did not specifically

address whether it was reasonable for Dolphus to

continue to obtain PM&R treatment on an “as needed”

basis, but Dr. Gross testified in his deposition that he

516 287 M

ICH

511 [Mar

believed it was reasonable for Dolphus to continue to

receive PM&R treatment on an “as needed” basis. The

claims adjuster agreed that had she been aware of Dr.

Gross’s opinion regarding PM&R treatment, she would

not have denied plaintiff’s PM&R claim. The trial court

did not clearly err by determining that defendant acted

unreasonably in refusing to reimburse plaintiff for

Dolphus’s PM&R treatment in the amount of $1,235.

Defendant next argues that the trial court abused its

discretion by awarding the full amount of attorney fees

and costs plaintiff sought, $57,690 and $9,651.67, re-

spectively. We disagree.

An award of attorney fees under MCL 500.3148(1)

must be reasonable. Wood v Detroit Auto Inter-Ins Exch,

413 Mich 573, 588; 321 NW2d 653 (1982). There is no

precise formula for assessing the reasonableness of an

attorney fee. In re Temple Marital Trust, 278 Mich App

122, 138; 748 NW2d 265 (2008). In Wood, our Supreme

Court identified the following factors for courts to

consider when determining what constitutes a reason-

able attorney fee under MCL 500.3148(1): “ ‘(1) the

professional standing and experience of the attorney;

(2) the skill, time and labor involved; (3) the amount in

question and the results achieved; (4) the difficulty of

the case; (5) the expenses incurred; and (6) the nature

and length of the professional relationship with the

client.’ ” Wood, 413 Mich at 588, quoting Crawley v

Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973).

The factors are not exclusive

and a trial court “need

not detail its findings as to each specific factor consid-

ered.” Wood, 413 Mich at 588. The burden of proving

the fees rests upon the claimant of those fees. Petterman

See MRPC 1.5(a), which provides eight factors for courts to consider

when determining the reasonableness of attorney fees, some overlapping

with the Wood factors.

2010] T

INNIN V

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XCH

517

v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d

710 (1983). The party seeking attorney fees also bears

the burden of establishing they are reasonable. Solution

Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App

368, 382; 652 NW2d 474 (2002).

Plaintiff sought to recover attorney fees for 192.30

hours of work at a rate of $300 an hour. The 192.30

hours reflected only the amount of time one attorney

expended on plaintiff’s case over approximately 2

years, and did not include the time of a second attorney

who attended and participated in the trial. Plaintiff

submitted an affidavit from her principal attorney

stating that the attorney had tried several first-party

no-fault cases, five of which resulted in an award of

attorney fees. The attorney’s hourly rate in those cases

ranged from $250 to $300. The trial court granted

plaintiff her entire request for attorney fees and costs,

explaining its decision as follows:

In looking at the amount per hour, that appears to be a

reasonable hourly rate in light of the court’s familiarity

with the plaintiff’s counsel and experience in the area and

the court’s familiarity with the Wood criteria we look at in

the area of attorney fees.

The hours involved here appear to be reasonably related

to the result that occurred and you are entitled to that

under the provisions of the act.

PM&R bill we believe is sufficiently relates [sic] to the

closed head injury such that the work-up for the case and

the witness testimony on the issue would support attorney

fees for the whole case. This would include the testimony of

the doctors indicating that the–I will say that another way.

The testimony of the physicians would be sufficient and

apparently was used by the jury in making the call as to

whether or not the PM&R bill was related to the accident.

It was close enough for them to hang their hat on as a basis

for allowing for approval of that bill even though it was not

their specific bill, enough of a relationship in terms of the

518 287 M

ICH

511 [Mar

closed head injury testimony to allow for it and they

accepted that testimony as best as we can tell and the

totality of the testimony in making the call as to whether or

not that bill was reasonably related to the accident.

So all of the testimony went to the issue that the jury

found with regard to the support for the bill and for those

reasons the entire work-up of the case would be awarded.

The obvious problem with the defendant’s suggestion

would be that we go back and somehow or another dissect

the hours submitted during the course of the trial and the

work-up of the trial to determine what was related to the

bill, what was unrelated to the bill.

This case, it was all interrelated. This is the case where

there was a closed head injury and everything is related.

The jury for whatever reason didn’t go along with the

attended [sic] care. I suspect it was a reason that I had

placed on the record but that day she had testified, the

mother, that she was doing all these things before the

injuries to her son and she was doing the things for him

along with preparing meals and so forth for the other son

in the home. She was doing it as a mother before the crash

but she had to do it as a caregiver after the crash because

he couldn’t do it for himself.

The jury may very well have used that as a rationale but

I am not going to limit the plaintiff or discourage the

plaintiff from bringing these kinds of cases and not award

the attorney fees because I believe the bill not being paid

was unreasonable.

Defendant argues that the bulk of plaintiff’s suit

revolved around plaintiff’s claim for attendant care

services totaling over $90,000, which the jury denied

completely. Defendant argues that plaintiff’s claim for

attendant care can be separated from plaintiff’s claim

for PM&R treatment, and that the award of attorney

fees should reflect the amount plaintiff recovered as

opposed to how much she sought. Defendant character-

izes plaintiff’s claim for attendant care benefits as

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cognitive in nature and links it to Dolphus’s alleged

closed head injury, whereas defendant characterizes

plaintiff’s claim for PM&R benefits as primarily physi-

cal in nature, apparently linking it to the leg fractures

Dolphus suffered in the accident.

The extent of each injury’s relationship to plaintiff’s

claim for PM&R treatment and attendant care services is

unclear from the record. The trial court found the PM&R

bill to be sufficiently related to the closed head injury and

thus considered unrealistic any attempt to separate the

time and costs expended in pursuit of the PM&R claim

from the time and costs expended in pursuit of the

attendant care services. Defendant fails to provide factual

support for its attempt to draw clear lines between plain-

tiff’s claims for PM&R and attendant care. The PM&R bill

was based solely on Dr. Ilechukwu’s treatment of Dolphus.

Dr. Ilechukwu is board-certified in PM&R as well as

occupational medicine. He diagnosed Dolphus as having

suffered a closed head injury in the accident and believed

that his lower back pain was related to the accident. Dr.

Ilechukwu testified that the brain trauma Dolphus suf-

fered in the accident exacerbated his preexisting cognitive

problems and resulted in a deterioration of both his

cognitive and physical functioning. Dr. Ilechukwu recom-

mended that Dolphus receive “case management to coor-

dinate his care,” home health care, assistance with his

chores and transportation, and eight hours of attendant

care a day. Dr. Ilechukwu saw Dolphus three more times

over the following year and did not change his diagnoses

or recommendations with respect to Dolphus’s care. On

this record we are unable to say that the trial court clearly

erred by finding that Dolphus’s PM&R treatment was

sufficiently related to his closed head injury.

Defendant’s apparent reason for attempting to link plaintiff’s claim

for attendant care exclusively to Dolphus’ closed head injury is to argue

520 287 M

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511 [Mar

Defendant argues that the trial court abused its

discretion when it refused to apportion the award of

attorney fees so that plaintiff was compensated only for

the time and effort directly attributable to securing the

overdue PM&R benefits. Defendant, however, points to

no authority that requires a court to apportion attorney

fees “where a defendant has unreasonably refused to

pay certain benefits even where its refusal to pay other

benefits was found not to be unreasonable.” Cole v

Detroit Auto Inter-Ins Exch, 137 Mich App 603, 614; 357

NW2d 898 (1984). In Moore, the jury awarded the

plaintiff $50,000 in noneconomic damages and $42,755

in unpaid work loss benefits. The jury found that only

$822.52 of the work loss benefits were overdue and

awarded $98.71 in penalty interest accordingly. Moore,

482 Mich at 511, 523. The Moore Court explained that

although an award of attorney fees incurred to collect

overdue benefits would normally be appropriate, the

plaintiff was not entitled to attorney fees because,

before plaintiff’s suit went to trial, defendant already had

paid plaintiff $822.52 for one week of work loss benefits

and all other payments that defendant owed as a result of

the computer glitch. Because plaintiff did not attribute any

of the $79,415 that the trial court awarded her in attorney

fees and costs to collecting $822.52 in overdue work loss

benefits, plaintiff is not entitled to attorney fees. [Id.at524

(emphasis added).]

We find Moore distinguishable from the instant case.

Unlike in Moore, the trial court found that all of the

attorney’s time for which plaintiff sought compensation

was sufficiently related to securing the overdue benefits

compensable under MCL 500.3148(1).

that the jury’s rejection of plaintiff’s attendant care claim equates to a

finding that Dolphus did not suffer a closed head injury. At the end of

trial, the trial court disagreed with defendant, explaining that the verdict

did not compel such an inference. We agree with the trial court.

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Because the language of MCL 500.3148(1) does not

unambiguously require the apportionment defendant

advocates, we hold the trial court did not abuse its

discretion by refusing to apportion plaintiff’s award of

attorney fees.

Defendant’s next argument is based on Wood factor

(3), “the amount in question and the results achieved.”

Defendant argues that the majority of plaintiff’s claim

concerned attendant care services totaling over

$90,000, which the jury denied completely. Defendant

stresses that plaintiff’s recovery of $1,453.95, which

included penalty interest, constituted less than two

percent of the amount of damages plaintiff sought

overall. While it is within the discretion of the trial

court to adjust the award of attorney fees in light of the

result achieved, it is not required to do so as long as the

ultimate award remains reasonable. See Schellenberg v

Rochester Lodge No 2225 of the Benevolent & Protective

Order of Elks, 228 Mich App 20, 45; 577 NW2d 163

(1998). In awarding plaintiff attorney fees, the trial

court noted its familiarity with plaintiff’s counsel and

his experience in the area of no-fault insurance, and

found that all the attorney hours for which plaintiff

sought compensation related to securing the PM&R

claim. The trial court explained that the jury apparently

used the testimony of each physician to determine that

the PM&R costs were related to the accident. And the

trial court indirectly addressed plaintiff’s small recov-

ery by explaining that he did not want to deter plaintiffs

in general from bringing claims for benefits that are

unreasonably withheld by their insurers. In light of the

trial court’s analysis of the Wood factors on the record,

we conclude that the trial court did not abuse its

discretion by awarding plaintiff attorney fees and thus

affirm the award.

522 287 M

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511 [Mar

Defendant also contests the trial court’s award of

taxable costs to plaintiff. We review a trial court’s

decision on a motion for costs under MCR 2.625 for an

abuse of discretion. Klinke v Mitsubishi Motors Corp,

219 Mich App 500, 518; 556 NW2d 528 (1996).

MCR 2.625(A)(1) provides:

In General. Costs will be allowed to the prevailing party

in an action, unless prohibited by statute or by these rules

or unless the court directs otherwise, for reasons stated in

writing and filed in the action.

The trial court awarded plaintiff $9,651.67 in taxable

costs, $7,050 of which represented the costs of procur-

ing the expert opinions and testimony of a psychiatrist

and a psychologist. Implicit in defendant’s challenge to

this portion of the costs is again the assumption that

Dolphus’s closed head injury was the sole basis for

plaintiff’s claim for attendant care. As discussed above,

the trial court did not clearly err when it found that

Dolphus’s closed head injury sufficiently related to

plaintiff’s claim for PM&R treatment. Accordingly, the

trial court did not abuse its discretion by awarding

plaintiff the costs of procuring the expert testimony. See

MCR 2.625(B)(2); see also Angott v Chubb Group of Ins

Cos, 270 Mich App 465, 488-490; 717 NW2d 341 (2006).

We affirm. As the prevailing party, plaintiff may tax

costs pursuant to MCR 7.219.

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HOLLAND v TRINITY HEALTH CARE CORPORATION

Docket No. 280657. Submitted January 16, 2009, at Detroit. Decided

March 16, 2010, at 9:00 a.m.

Kellie Holland brought an action in the Oakland Circuit Court,

Michael Warren, J., against Trinity Health Care Corporation,

alleging that defendant wrongfully charged her for medical ser-

vices provided by defendant’s hospital. Plaintiff, who does not have

health insurance, executed an agreement to pay defendant’s

“usual and customary charges,” but alleged that the usual and

customary charges she agreed to pay meant the discounted pay-

ments that defendant accepts from health insurers and other

third-party payors rather than the price stated in defendant’s

“Charge Master,” which are higher than the discounted prices

charged to insured patients. The trial court granted summary

disposition in favor of defendant, holding that the phrase “usual

and customary charges” referred to the Charge Master prices.

Plaintiff appealed.

The Court of Appeals held:

1. Plaintiff, in contending that the phrase “usual and custom-

ary charges” is ambiguous, failed to establish that the term

conflicts with another term in the agreement. Therefore, to the

extent that plaintiff failed to identify terms that allegedly conflict

with one another, her contention that the “conflicting terms” form

of contract ambiguity exists must be rejected.

2. The trial court properly held that the phrase “usual and

customary charges” unambiguously refers to the “Charge Master”

prices.

3. The trial court did not utilize extrinsic evidence when it

relied on the pleadings to show that plaintiff conceded that there

is a difference between the charges maintained in the Charge

Master and the discount payments that defendant accepted under

a variety of circumstances.

4. The trial court did not rely on the no-fault motor vehicle

insurance act, MCL 500.3101 et seq., in interpreting the parties’

financial agreement.

Affirmed.

524 287 M

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524 [Mar

Bendure & Thomas (by Mark R. Bendure) and Cohen

& Malad, LLP (by Richard E. Shevitz, Arend J. Abel,

Vess A. Miller, and Gabriel A. Hawkins), for plaintiff.

Honigman Miller Schwartz and Cohn LLP (by Ray-

mond W. Henney, Robert M. Jackson, and Douglas C.

Salzenstein) and McDermott Will & Emery LLP (by

David S. Rosenbloom and Jocelyn D. Francoeur) for

defendant.

Before: F

ORT

OOD

,P.J., and W

ILDER

and B

ORRELLO

JJ.

ILDER

, J. Plaintiff appeals as of right an order

granting summary disposition to defendant in this

dispute over “usual and customary charges” for medical

care given to an uninsured patient. The trial court held

that the “usual and customary charges” language of the

parties’ agreement was unambiguous and referred to

the prices stated in defendant’s “Charge Master,” which

are higher than the discounted prices charged to in-

sured patients. We agree with the trial court, and

therefore affirm.

Defendant is a nonprofit corporation that owns and

operates hospitals, including the Saint Joseph Regional

Medical Center, in Plymouth, Indiana. On December 1,

2005, plaintiff went to that hospital for medical care,

and was admitted for treatment of a kidney stone. But

plaintiff was uninsured, so she executed an agreement

with the hospital, in which she promised to pay “for all

services rendered to me at the Medical Center’s usual

and customary charges ....”(Emphasis added.) Defen-

dant and its agents discharged their duties under the

agreement, by providing medical services to treat plain-

tiff’s ailment. Then, defendant billed plaintiff for the

services. But plaintiff refused to pay the charges billed,

2010] H

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and instead commenced this action, alleging, inter alia,

that the “usual and customary charges” she promised

to pay meant the discounted payments defendant ac-

cepts from health insurers and other third-party pay-

ors, for a majority of its patients, rather than the prices

stated in defendant’s “Charge Master.” The Charge

Master is an index of undiscounted charges defendant

uses for its health care services to patients.

On appeal, plaintiff argues that the court erred by

determining that the phrase “usual and customary

charges” referred to the prices listed in defendant’s

Charge Master, rather than the discounted payments

that defendant accepts for insured patients.

We dis-

agree.

This Court reviews de novo summary disposition rul-

ings. Willett v Waterford Charter Twp, 271 Mich App 38,

45; 718 NW2d 386 (2006). A written contract’s interpre-

tation is also reviewed de novo. Coates v Bastian Bros,

Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007).

Whether contractual terms are ambiguous is a question of

law, and this Court reviews de novo the proper interpre-

tation of a contract. Able Demolition, Inc v City of Pontiac,

275 Mich App 577, 581; 739 NW2d 696 (2007).

Our Supreme Court’s contracts jurisprudence em-

phasizes the well-defined role of courts in contract

disputes: viz., courts enforce unambiguous contract

terms. Quality Prod & Concepts Co v Nagel Precision,

Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). We

enforce contracts according to their terms, as a corol-

lary of the parties’ liberty of contracting. Rory v Conti-

Plaintiff failed to raise her “good faith and fair dealing” claims on

appeal, and has therefore abandoned those issues. Etefia v Credit

Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). We

express no opinion on whether claims of breaches of duties of good faith

and fair dealing legally state claims on which relief can be granted.

526 287 M

ICH

524 [Mar

nental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005).

We examine written contractual language, and give the

words their plain and ordinary meanings. Wilkie v

Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776

(2003). An unambiguous contractual provision reflects

the parties’ intent as a matter of law, and “[i]f the

language of the contract is unambiguous, we construe

and enforce the contract as written.” Quality Prod &

Concepts Co, 469 Mich at 375. Moreover, courts may not

impose an ambiguity on clear contract language, Grosse

Pointe Park v Mich Muni Liability & Prop Pool, 473

Mich 188, 198; 702 NW2d 106 (2005), because Michigan

courts honor parties’ bargains and do not rewrite them,

McDonald v Farm Bureau Ins Co, 480 Mich 191, 197;

747 NW2d 811 (2008); see also Coates, 276 Mich App at

511 n 7. For instance, courts generally may not attempt

to evaluate whether a contract is one of “adhesion.” See

Rory, 473 Mich at 477. “An ‘adhesion contract’ is simply

that: a contract. It must be enforced according to its

plain terms unless one of the traditional contract de-

fenses applies.” Id.

On the other hand, a contract is ambiguous when two

provisions “irreconcilably conflict with each other,” or

“when [a term] is equally susceptible to more than a

single meaning,” Coates, 276 Mich App at 503 (quota-

tion marks and citations omitted). Only when contrac-

tual language is ambiguous does its meaning become a

question of fact. Port Huron Ed Ass’n v Port Huron Area

Sch Dist, 452 Mich 309, 323; 550 NW2d 228 (1996). The

ancient common-law rule of contra proferentem (an

agreement is construed against its drafter) is used only

when there is a true ambiguity, and the parties’ intent

cannot be discerned through all conventional means,

including extrinsic evidence. Klapp v United Ins Group

Agency, Inc, 468 Mich 459, 470-471; 663 NW2d 447

(2003). Courts may consult dictionary definitions to

2010] H

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527

ascertain the plain and ordinary meaning of terms

undefined in an agreement. Coates, 276 Mich App at

504. “Resort to dictionary definitions is acceptable and

useful in determining ordinary meaning.” Cowles v

Bank West, 476 Mich 1, 34; 719 NW2d 94 (2006)

(quotation marks and citation omitted).

In challenging the trial court’s grant of summary

disposition below, plaintiff contends that the phrase

“usual and customary charges” is equally susceptible to

more than a single meaning. Lansing Mayor v Pub Serv

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

Plaintiff argues that “usual and customary charges”

might mean either (1) the prices in the Charge Master,

or (2) the discounted prices charged to insured patients.

We disagree. We first note that in contending that the

phrase “usual and customary charges” is ambiguous,

plaintiff does not establish that this term conflicts with

another term in the contract. Thus, to the extent that

plaintiff does not identify terms that allegedly conflict

with one another, we reject the proposition that the

“conflicting terms” form of ambiguity exists.

Next, we note that plaintiff is in partial agreement

with defendant on the application of the phrase usual

and customary—namely, that plaintiff “promised to

pay... [defendant’s] usual and customary charges”

(emphasis supplied) for services rendered to her. Black’s

Law Dictionary (8th ed) defines “charge” as “[t]o de-

mand a fee; to bill.” Thus, plaintiff’s claim does not

hinge on the amount charged her; rather, plaintiff

asserts that the phrase “usual and customary charges”

reasonably refers to the amount defendant accepts as

payment from the majority of its patients. Because it

was undisputed that the amount defendant charged

plaintiff was based on defendant’s “Charge Master,”

resolution of this issue depends upon whether the

528 287 M

ICH

524 [Mar

phrase “usual and customary charges” reasonably ref-

erences the “Charge Master.”

Because Michigan caselaw does not directly address

this issue in the context at hand, both parties cite the

Nebraska Supreme Court decision in Midwest Neurosur-

gery, PC v State Farm Ins Cos, 268 Neb 642; 686 NW2d

572 (2004), in support of their positions.

At issue in

Midwest Neurosurgery was whether a physician’s lien

could “exceed the amount the health care provider agreed

to accept for the services rendered to a patient, even if the

usual and customary charge for such services is greater

than that sum” under Nebraska’s physician’s lien statute.

Id. at 647 (quotation marks and citation omitted). While

ruling that the lien statute provided that the lien did not

extend to the full amount due for “usual and customary

charges,” the Nebraska Supreme Court explained that

“usual and customary charges” referred to the amount

the “provider typically charges other patients for the

services that it provided to the injured party.” Id. at 650.

No reference, however, was made linking “usual and

customary charges” to discounted payments—i.e., that to

which plaintiff contends “usual and customary charges”

refers. Thus, Midwest Neurosurgery does not support

plaintiff’s position.

In any event, DiCarlo v St Mary Hosp, 530 F3d 255,

260 (CA 3, 2008),

contains a factual situation analo-

gous to the instant case and is directly on point.

DiCarlo, when the defendant hospital charged the un-

Cases from other jurisdictions, although not binding, may be persua-

sive. Hiner v Mojica, 271 Mich App 604, 612; 722 NW2d 914 (2006).

Because the DiCarlo court adopted the lower court’s opinion as its

own, subsequent citation to this case will be to the lower court’s opinion.

DiCarlo, 530 F3d at 260.

Opinions of lower federal courts, although not binding, may be

considered persuasive authority. Walters v Nadell, 481 Mich 377, 390 n

32; 751 NW2d 431 (2008).

2010] H

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insured plaintiff for medical services in accordance with

its “Charge Master” price index, the plaintiff brought a

class action suit against the defendant alleging, inter

alia, breach of contract for the defendant’s failure to

bill an amount consistent with the discounted prices the

defendant accepted from other patients. DiCarlo v St

Mary’s Hosp, 2006 US Dist LEXIS 49000 (2006), un-

published opinion of the United States District Court

for the District of New Jersey, issued July 19, 2006

(Docket No. 05-1665). In finding that the term “all

charges” unambiguously referred to the defendant’s

“Charge Master,” the Court explained:

While Plaintiff’s contentions have facial persuasiveness,

they fail to take into account the peculiar circumstances of

hospitals, such as St. Mary’s, and the bearing these circum-

stances have upon the interpretation of contracts between

a patient and the hospital. St. Mary’s has a uniform set of

charges (casually known as the “Chargemaster”) that it

applies to all patients, without regard to whether the

patient is insured, uninsured, or a government program

beneficiary. As Plaintiff in his complaint and in his briefs

recites, St. Mary’s accepts a variety of discounted payments

in different situations. It negotiates differing discounts

with some managed care payors and insurance companies.

It accepts discounted payments if the patient is covered by

a government program that legislatively imposes dis-

counts. It has provided discounts to uninsured patients

based on demonstrated financial need pursuant to its

Charity Care policy....

***

The price term “all charges” is certainly less precise

than [the] price term of the ordinary contract for goods or

services in that it does not specify an exact amount to be

paid. It is, however, the only practical way in which the

obligations of the patient to pay can be set forth, given the

fact that nobody yet knows just what condition the patient

has, and what treatments will be necessary to remedy what

530 287 M

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524 [Mar

ails him or her. Besides handing the patient an inches-high

stack of papers detailing the hospital’s charges for each and

every conceivable service, which he or she could not possi-

bly read and understand before agreeing to treatment, the

form contract employed by St. Mary’s is the only way to

communicate to a patient the nature of his or her financial

obligations to the hospital. Furthermore, “it is incongruous

to assert that [a hospital] breached the contract by fully

performing its obligation to provide medical treatment to

the plaintiff[] and then sending [him] [an] invoice[] for

charges not covered by insurance.” Burton v. Beaumont

Hosp., 373 F. Supp. 2d 707, 719 (E.D. Mich. 2005). [Id.at

*9-*12.]

The instant case is nearly identical to DiCarlo.In

both cases, the parties executed financial agreements

not explicitly referencing the “Charge Master.” Simi-

larly, the defendants in both cases accepted discounted

payments of which the plaintiffs in both cases were

unaware and offered discounts to patients demonstrat-

ing financial need. DiCarlo, supra. Although plaintiff

contends that DiCarlo is distinguishable because that

case employed the phrase “all charges” as opposed to

the phrase “usual and customary charge” as used in the

financial agreement, this appears to be a distinction

without a difference given the similar context of the

financial agreements executed in both cases. Also, even

though plaintiff asserts that DiCarlo is distinguishable

because plaintiff does not dispute that the financial

agreement at issue contains an open price term, re-

course to DiCarlo is appropriate because it addresses

the central issue of this case—namely whether the

phrase “usual and customary charge” reasonably refers

to the “Charge Master.” Indeed, the crux of DiCarlo’s

holding was that the defendant hospital properly uti-

lized the “Charge Master” to uniformly charge all

patients despite its acceptance of discounted payments.

Plaintiff concedes that while defendant maintains

2010] H

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“standard or master charges,” it negotiates discounted

payments that are lower than the amount the patients

are charged. Consequently, given these similarities, we

conclude that the trial court properly held that the

phrase “usual and customary charges” unambiguously

refers to the “Charge Master.”

Although plaintiff asserts that the trial court improp-

erly examined the pleadings in making this determina-

tion, the court relied on the pleadings to show that

plaintiff conceded a difference between the charges

maintained in the “Charge Master” and the “discount

payments” that defendant accepted under a variety of

circumstances. This was not a utilization of extrinsic

evidence. Rather, the court’s point was that the plead-

ings undercut plaintiff’s argument that the phrase

“usual and customary charges” referred to the “dis-

count payments” accepted by defendant.

Plaintiff asserts that in addition to Midwest Neuro-

surgery, caselaw from other jurisdictions supports her

argument that “usual and customary charges” did not

reasonably refer to the “Charge Master.” However, all

the cited cases are distinguishable from the instant

case.

First, the Tennessee Supreme Court found in Doe v

HCA Health Servs of Tennessee, Inc, 46 SW3d 191, 194,

197 (Tenn, 2001), that the defendant hospital’s confi-

dential “Charge Master” was insufficient to determine

the plaintiff’s charges where the form contract only

indicated that the plaintiff was responsible for “charges

Because the financial agreement was unambiguous, plaintiff’s alter-

native argument that the Court must construe ambiguities against the

drafter is irrelevant. Also, contrary to plaintiff’s argument, the court did

not address the concluding phrase of the agreement requiring plaintiff to

pay for services not covered by insurance, Medicare, or Medicaid.

Regardless, that portion of the agreement is irrelevant to interpretation

of the phrase “usual and customary charges.”

532 287 M

ICH

524 [Mar

not covered” under her insurance policy. The court held

that without reference to the “Charge Master,” the

defendant hospital’s charges were indefinite. Id. at 197.

Here, however, there is no issue regarding whether the

charges were indefinite. On the contrary, plaintiff con-

ceded that patients’ expectations are reasonably based

on defendant’s “Standard Charges” (i.e., “Charge Mas-

ter”). Thus, Doe is distinguishable from this case.

Next, plaintiff cites Anonymous v Monarch Life Ins

Co, 42 Misc 2d 308; 247 NYS2d 894 (NY Dist, 1964), a

New York District Court case, in support of her argu-

ment. However, Monarch Life Ins Co pertained to the

interpretation of “usual and customary charges” in an

insurance policy rather than the price mechanism hos-

pitals use to determine such charges at issue in this

case. Id. at 896. Similarly, although defendant cites the

Florida Court of Appeals finding in Payne v Humana

Hosp Orange Park, 661 So 2d 1239, 1241&n2(Fla

App, 1995), that a reasonable price is implied in a

contract where the contract fails to fix a price, the

parties in that case disagreed on whether the defendant

hospital’s contract prices were set and ascertainable. In

contrast, here, there is no issue pertaining to whether

defendant’s charges are ascertainable. Servedio v Our

Lady of the Resurrection Med Ctr, unpublished memo-

randum opinion of the Illinois Circuit Court, issued

January 6, 2005 (Docket No. 04 L 3381),

is also

unavailing to plaintiff because even though the trial

court in that case determined that the plaintiffs’ asser-

tion that the defendant hospital’s acceptance of dis-

counted payments created a de facto “usual and custom-

ary charge” sufficient to survive a motion for failure to

state a claim on which relief could be granted, no

This case is not available on Westlaw or Lexis, but is attached as

Exhibit F to plaintiff’s brief on appeal.

2010] H

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mention was made in that case of a uniform pricing

mechanism, such as the “Charge Master.”

Plaintiff further contends that the trial court’s reli-

ance on the Arizona Court of Appeals decision in

Banner Health v Med Savings Ins Co, 216 Ariz 146,

148-151; 163 P3d 1096 (Ariz App, 2007), was misplaced.

Plaintiff is wrong. In Banner Health, the Arizona Court

of Appeals found that the phrase “usual and customary

charges” did not constitute an open price term because

the patient agreement specified that such charges re-

ferred to “those rates filed annually with the Arizona

Department of Health Services.” Despite the fact that

defendant, here, was not required by law to file its

“Charge Master” with the state, the issue in this case

does not pertain to an open price term, and that case is

also distinguishable. In any event, the trial court cited

Banner merely to distinguish charges from discount

payments. Therefore, this argument is meritless.

Plaintiff also argues that the trial court misconstrued

the no-fault motor vehicle insurance act, MCL 500.3101 et

seq., in finding that Michigan’s jurisprudence supported

the conclusion that “usual and customary charges” unam-

biguously referenced the “Charge Master” rather than

“discount payments.” In making her argument, plaintiff

contends that the no-fault act is not instructive because

the statutory language in the no-fault act is different

from, and therefore may not be applied to, the contractual

language in the parties’ financial agreement. Specifically

at issue is MCL 500.3107(1)(a), requiring insurers to pay

“all reasonable charges incurred for reasonably necessary

products, services and accommodations for an injured

person’s care, recovery, or rehabilitation,” and MCL

500.3157, requiring that health care charges be “reason-

able” and not exceed the amount “customarily charge[d]”

for similar services rendered to uninsured patients.

534 287 M

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524 [Mar

However, the court did not rely upon caselaw inter-

preting the no-fault act to apply the statutory provi-

sions of the no-fault act to the contractual provision at

issue in this case as plaintiff asserts. On the contrary,

the court merely cited cases interpreting the no-fault

act to demonstrate how Michigan caselaw has consis-

tently found that discounted payments accepted by

health care providers are irrelevant to the determina-

tion whether health care providers’ charges are “cus-

tomary” under § 3157. See Munson Med Ctr v Auto

Club Ins Ass’n, 218 Mich App 375, 381-385; 554 NW2d

49 (1996) (finding that a “customary charge” under

§ 3157 of the no-fault act refers to the amount a health

care provider charges rather than the amount accepted

as payment), and Hofmann v Auto Club Ins Ass’n, 211

Mich App 55, 113; 535 NW2d 529 (1995) (rejecting the

insurance provider’s argument that the “customary

charge” under § 3157 referred to the amount that an

insurance provider paid for the services rather than the

amount it was charged for the services).

Johnson v Mich Mut Ins Co, 180 Mich App 314; 446

NW2d 899 (1989), cited by plaintiff in support of her

contention that the trial court misconstrued the no-

fault act, actually undermines her position. In Johnson,

this Court found that the no-fault insurer was required

to pay the medical provider’s “customary” charges

rather than the discounted payment the provider was

required to accept from Medicaid for those services. Id.

at 321-322. Thus, under Johnson’s reasoning, the ac-

ceptance of discounted payments does not define a

health care provider’s “customary” charge. This is the

fundamental argument defendant asserts in the case at

hand.

In any event, the trial court did not rely upon the

no-fault act in interpreting the financial agreement, but

2010] H

OLLAND V

RINITY

EALTH

ARE

535

merely noted that its reasoning was consistent with

Michigan courts’ interpretation of “customary” charges

under the no-fault scheme. Thus, plaintiff’s argument

is without merit.

Defendant, being the prevailing party,

may tax costs pursuant to MCR 7.219.

Affirmed.

We note that defendant contends that plaintiff received a 20 percent

discount, and that this constitutes an additional reason to affirm the

order granting summary disposition because the amount she paid was

comparable to discounts available to defendant’s insured patients. How-

ever, defendant presented no evidence as required to prevail under MCR

2.116(C)(10) concerning the actual amount of discounted payments it

accepted from other patients. MCR 2.116(G)(3)(b); Maiden v Rozwood,

461 Mich 109, 120; 597 NW2d 817 (1999). Thus, this claim fails as

insufficiently established to justify summary disposition under MCR

2.116 (C)(10).

536 287 M

ICH

524 [Mar

PROGRESSIVE MICHIGAN INSURANCE COMPANY v SMITH

Docket No. 287505. Submitted December 1, 2009, at Grand Rapids.

Decided March 16, 2010, at 9:05 a.m.

Progressive Michigan Insurance Company brought an action in the

Kent Circuit Court, Dennis B. Leiber, J., against William Smith,

Sheri Harris, and Scott and Andrea Mihelsic, seeking a declaration

regarding its obligations under a motor vehicle insurance policy

issued to Harris to indemnify Smith after a default judgment was

entered against Smith in an action by the Mihelsics for injuries

sustained in a motor vehicle accident that occurred when a truck

driven by Smith crossed the centerline of the road and struck the

Mihelsics’ vehicle. Smith had added his friend Harris to the title of

the truck when he purchased it because he had a suspended

driver’s license and was unable to obtain license plates and

insurance. Harris obtained the insurance and Smith paid for it. A

form signed by Harris listed Smith as an excluded driver and the

declarations page of the policy and the certificate of insurance also

listed Smith as an excluded driver. The trial court allowed Pioneer

State Mutual Insurance Company to intervene as a defendant and

granted Progressive’s motion for summary disposition that was

based on the named driver exclusion. The Mihelsics appealed,

alleging that Progressive failed to use the required statutory

language in some of the documents containing the named driver

exclusion and, therefore, the exclusion was not valid.

In a lead opinion by Judge B

ANDSTRA

and an opinion by Judge

URRAY

concurring in the reasoning and the result of the lead

opinion, the Court of Appeals held:

The named driver exclusion in the policy is invalid because it

did not strictly comply with the wording of the statutorily required

warning regarding the named driver exclusion. The trial court

erred by granting Progressive’s motion for summary disposition

and denying the Mihelsics’ cross-motion for summary disposition.

The judgment of the trial court must be reversed and the case

must be remanded to the trial court for further proceedings.

Judge B

ANDSTRA

stated in the lead opinion that to satisfy the

notice requirement of MCL 500.3009(2) the warning must appear

on the certificate of insurance and at least one of the following, the

2010] P

ROGRESSIVE

ICH

MITH

537

face of the policy, the declaration page, or the certificate of the

policy. The trial court correctly concluded that the requirements of

§ 3009(2) were not satisfied merely by inclusion of the correctly

worded warning on the declaration page. The statute provides the

warning that must be provided verbatim by insurers. Progressive

failed to provide the statutorily required notice verbatim.

Judge M

URRAY

, concurring, wrote separately to point out that

MCL 500.3009(2) unambiguously requires the named driver ex-

clusion to be provided in the exact words that the Legislature

mandated. The absurd result doctrine of statutory construction

employed by the dissent cannot be used to modify an unambiguous

statute. The statute’s unambiguous commands must be enforced.

Reversed and remanded.

Judge M

ARKEY

, dissenting, would hold that Progressive com-

plied with the statutory notice requirement when it substituted

the term “responsible” for the term “liable” in the named driver

exclusion on some of the insurance documents. Progressive accom-

plished the intent of the Legislature in enacting § 3009(2) notices

by substituting the totally synonymous word “responsible” for the

word “liable.” Although it is the Court’s function to apply the law

as written, on rare occasions there may arise situations where

following this philosophy with myopic rigidity effects not only a

complete thwarting of the Legislature’s intent but also a pro-

foundly unfair and inequitable result. The narrow facts of this case

and the majority’s treatment of them create precisely that situa-

tion. Upholding the exclusion under the facts of this case would

fulfill the Legislature’s intent. The judgment of the trial court

should be affirmed.

NSURANCE —

OTOR

EHICLE

IABILITY

OVERAGE —

AMED

XCLUDED

PERA-

TORS —

OTICE OF

XCLUDED

PERATORS

The Insurance Code provides that, if authorized by the insured,

automobile liability or motor vehicle liability coverage may be

excluded when a vehicle is operated by a named excluded person;

the warning that must be provided with regard to a named

excluded person must be verbatim the warning provided in MCL

500.3009(2) and must appear on the certificate of insurance and at

least one of the following: the face of the policy, the declaration

page, or the certificate of the policy.

Bensinger, Cotant & Menkes, P.C. (by Kerr L. Moyer),

for Progressive Michigan Insurance Company.

538 287 M

ICH

537 [Mar

RizzoBryan, P.C. (by Devin R. Day), for Scott and

Andrea Mihelsic.

Before: M

ARKEY

,P.J., and B

ANDSTRA

and M

URRAY

,JJ.

ANDSTRA

, J. In this matter of first impression, I

would conclude that the warning notice requirement of

MCL 500.3009(2) must be enforced as written. Thus,

the named driver exclusion in the policy of insurance at

issue here is invalid because it does not strictly comply

with the statute.

BACKGROUND FACTS AND PROCEEDINGS BELOW

Defendants-appellants, Scott and Andrea Mihelsic,

were injured in an automobile accident when a truck

driven by defendant William Smith crossed the center-

line of the road and struck their vehicle. When Smith

purchased the truck, he did not have a driver’s license

because he had too many points on his record. In order

to obtain license plates and insurance, he added his

friend, defendant Sheri Harris, to the title. Harris

obtained insurance with appellee, Progressive Michigan

Insurance Company, and Smith paid for it. A form

signed by Harris lists Smith as an excluded driver. The

declaration page of the insurance policy also lists him as

an excluded driver, as does the certificate of insurance.

Appellants brought an action against Smith, and a

default was entered against him on October 4, 2006.

Progressive then brought this declaratory judgment

action to determine its liability to indemnify Smith and

moved for summary disposition pursuant to MCR

2.116(C)(10) on the basis of the named driver exclusion.

Appellants responded and filed a countermotion for

summary disposition. They argued, in part, that appel-

lee had failed to use the required statutory language for

2010] P

ROGRESSIVE

ICH

MITH

539

PINION BY

ANDSTRA

,J.

exclusion of a named driver on the documents showing

insurance coverage. Disagreeing, the trial court granted

appellee’s motion for summary disposition and denied

appellants’ cross-motion, leading to this appeal.

ANALYSIS

Summary disposition may be granted under MCR

2.116(C)(10) when “there is no genuine issue as to any

material fact, and the moving party is entitled to judg-

ment... as a matter of law.” We review a trial court’s

decision on a motion for summary disposition de novo.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817

(1999). Further, statutory interpretation is a question of

law that is reviewed de novo. United States Fidelity &

Guaranty Co v Mich Catastrophic Claims Ass’n (On

Rehearing), 484 Mich 1, 12; 773 NW2d 243 (2009).

“ ‘The primary goal of statutory interpretation is to

give effect to the intent of the Legislature.’ Fundamen-

tally, ‘[t]his task begins by examining the language of

the statute itself.’ ” Id. at 13 (citations omitted). Clear

and unambiguous statutory language must be enforced

as written. Id.at12.

MCL 500.3009(2) states:

If authorized by the insured, automobile liability or

motor vehicle liability coverage may be excluded when a

vehicle is operated by a named person. Such exclusion shall

not be valid unless the following notice is on the face of the

policy or the declaration page or certificate of the policy and

on the certificate of insurance: Warning—when a named

excluded person operates a vehicle all liability coverage is

void—no one is insured. Owners of the vehicle and others

legally responsible for the acts of the named excluded

person remain fully personally liable.

In this case, the warning on the declaration page of

plaintiff’s policy is identical to the portion of this

540 287 M

ICH

537 [Mar

PINION BY

ANDSTRA

,J.

statutory provision following the colon. However, in the

warning provided both on the face of the policy and on

the certificate of insurance, the last word is “respon-

sible” instead of “liable.”

Appellee argues, first, that the warning on the dec-

laration page alone is adequate. According to appellee,

the “and” in the second sentence of MCL 500.3009(2)

links the “certificate of the policy” and the “certificate

of insurance,” meaning that placing the warning on

both of these documents is an alternative to placing it

on either “the face of the policy or the declaration

page.” Thus, appellee argues that, because warning

language identical to the statute is found on the decla-

ration page, the statutory notice provision was satisfied

notwithstanding any failure of the language used on the

See also Little v Kin,

which adopted Thompson’s defi-

nition of “riparian land” being land bounded by a

natural watercourse.

While the above alone would make it clear that an

artificial pond does not create riparian lands with

riparian rights, the Court went on to make the point

even clearer:

Artificial water courses are waterways that owe their

origin to acts of man, such as canals, drainage and irriga-

tion ditches, aqueducts, flumes, and the like. 4 Restate-

ment, Torts, § 841, subd h, p 321.

Land abutting on an artificial water course has no

riparian rights.

The trial court’s error in the case at bar is its reliance

on an unpublished decision of this Court in Parsons v

Whittaker,

which incorrectly distinguished Thompson.

That case considered riparian rights arising from an

artificial lake created when a gravel pit filled with

water. The Court

acknowledged that there were no

published decisions of a Michigan court regarding

whether riparian rights arose in an artificial lake.

Indeed, it acknowledged that the common-law rule was

that land abutting an artificial watercourse had no

riparian rights, citing Thompson for that proposition.

But Parsons then distinguished Thompson on the basis

that it considered the rights where the artificial water-

course connects to a natural body of water.

Ultimately,

Parsons concluded that the common law did not pre-

clude a determination that artificial bodies of water give

249 Mich App 502, 508; 644 NW2d 375 (2002).

Thompson, 379 Mich at 679.

Parsons v Whittaker, unpublished opinion per curiam, issued August

23, 1996 (Docket Nos. 170274 and 171456).

Id.at2.

Id.at3.

580 287 M

ICH

576 [Mar

rise to riparian rights and that, in any event, the Inland

Lakes and Streams Act

created riparian rights to an

artificial lake at least five acres in size.

While Thompson did deal with an artificial waterway

that connected to a natural lake, there is nothing in the

opinion to suggest that the Court was relying on any

such distinction. Rather, it seems clear to us that

Thompson relied on the very broad principle that the

common law does not establish riparian rights in arti-

ficial bodies of water. Furthermore, we need not deter-

mine whether Parsons correctly determined that there

are statutory riparian rights because, even if Parsons is

correct on this point, it does not apply to the case at bar

because the pond at issue is smaller than five acres in

size.

For these reasons, we conclude that the trial court

erred by its reliance on Parsons and by concluding that

plaintiffs could establish that they had riparian rights

to use the entire surface of the artificial pond. Because

plaintiffs could not establish riparian rights with re-

spect to the artificial pond, the trial court erred by

submitting counts III and IV to a jury. Furthermore, we

also agree with defendant that this conclusion compels

a reversal of the jury verdict on count VI, the claim for

intentional infliction of emotional distress. While it is

true that the emotional distress claim was based not

just on the construction of the fence across the pond

and the jury could have found for plaintiffs on this

count without regard to the fence across the pond, it is

equally true that it is impossible to determine the

extent to which the fence may have improperly influ-

enced the jury’s determination that defendant inflicted

emotional distress or its assessment of damages. Ac-

cordingly, while our decision on counts III and IV does

Former MCL 281.951 et seq.

2010] P

ERSELL V

ERTZ

581

not compel a judgment for defendant on count VI, it

does invalidate the jury’s verdict on that count and

necessitates a new trial on count VI.

Defendant’s remaining argument on appeal is that

the trial court erred by denying summary disposition as

to counts I and II regarding the herbiciding of plaintiffs’

lawn. We disagree. With respect to count I, the common-

law trespass claim involving the spraying of herbicide

on plaintiffs’ lawn, it is true that plaintiffs do not point

to any direct evidence establishing that defendant did

so on the one occasion alleged in the complaint. But,

plaintiff David Persell did testify that he observed

defendant spraying herbicide on plaintiffs’ side of the

pond on a different occasion and that he observed

defendant spraying a herbicide on defendant’s property

about the time in question and that the resulting effect

appeared similar to what plaintiffs thereafter observed

on their own lawn. We conclude that this did create a

factual dispute for the jury to resolve, which it resolved

in plaintiffs’ favor.

But we do agree with defendant that count II, seek-

ing treble damages under MCL 600.2919(1)(c) should

have been dismissed because that statute is inapplicable

to this case. Like summary disposition, questions of

statutory interpretation are reviewed de novo.

The

goal of statutory interpretation is to give effect to the

legislative intent.

In doing so, we examine the lan-

guage of the statute and where the intent is clearly

expressed in the statute, no further construction is

necessary.

MCL 600.2919(1) provides that a person who inten-

Dressel v Ameribank, 468 Mich 557; 664 NWd 151 (2003).

Id.

Id. at 562.

Id.

582 287 M

ICH

576 [Mar

tionally does one of the following on the land of another

is liable for treble damages:

(a) cuts down or carries off any wood, underwood, trees,

or timber or despoils or injures any trees on other’s lands,

(b) digs up or carries away stone, ore, gravel, clay, sand,

turf, or mould or any root, fruit, or plant from another’s

lands, or

of grain from another’s lands....

Defendant essentially argues that the statute only ap-

plies to items of agricultural value. Plaintiffs counter

that a strict reading of the statute does not include any

requirement that the item cut down or carried away

must be of agricultural value.

Plaintiffs are correct in that nothing in the statute

limits the applicability of the statute to crops or other

valuable resources. But for the same reason, a proper

interpretation of the statute necessitates that plaintiffs

lose because nothing in the statute covers the poisoning

of the grass. That is, by its very terms, § (1)(c) only

applies to grass that a person “cuts down or carries

away” and it is not alleged that defendant did either. In

other words, just as defendant may not read into the

statute a requirement that the grass, hay, or grain be a

crop or otherwise a valuable resource, plaintiffs may not

read into the statute that it covers poisoning the grass

in addition to cutting it down or carrying it away. While,

as plaintiffs suggest, the grass may have “essentially

been cut down,” it was not actually cut down and,

therefore, the statute is inapplicable.

Moreover, this is not a mere parsing of words. Section

(1)(a) clearly reflects that the Legislature could have

included coverage of damage to the grass. That section,

in dealing with trees, in addition to providing for

2010] P

ERSELL V

ERTZ

583

coverage for cutting down or carrying off trees, also

specifically provides for coverage for despoiling or in-

juring a tree. This clearly reflects that the Legislature

did not include within the concept of cutting vegetation

down other injuries to vegetation and that, had the

Legislature wanted to include injuries to grass in addi-

tion to cutting it down, it would have included language

similar to that which it employed in reference to trees.

In sum, we agree that the trial court should have

dismissed counts II, III, and IV and not submitted these

counts to the jury. But we do conclude that the verdict

on count I should stand and we affirm the award of

$750 on this count. As for count VI, while it is possible

that plaintiffs could still prevail on this claim, it cannot

be based upon the allegations of trespass with regard to

the placing of the fence across the pond along the

property line because defendant had a right to do this.

Accordingly, we conclude that defendant is entitled to a

new trial on count VI only, with plaintiffs’ proofs not to

include reference to the fence across the pond.

Affirmed in part, reversed in part, vacated with

respect to the case evaluation sanctions, and remanded

for further proceedings consistent with this opinion. We

do not retain jurisdiction. No costs, neither party hav-

ing prevailed in full.

See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d

76 (1993) (“Courts cannot assume that the Legislature inadvertently

omitted from one statute the language that it placed in another statute,

and then, on the basis of that assumption, apply what is not there.”).

584 287 M

ICH

576 [Mar

DOE v CITIZENS INSURANCE COMPANY OF AMERICA

Docket No. 288776. Submitted January 12, 2010, at Lansing. Decided

January 26, 2010. Approved for publication March 23, 2010, at

9:10 a.m.

John Doe, a minor, through his mother and next friend, brought an

action in the Ingham Circuit Court against Citizens Insurance

Company of America; Michael Hand, a minor, by his guardian ad

litem, Thomas Woods; and Renee Boyle, seeking a declaration that

Citizens has a duty to defend and indemnify Hand and Boyle on an

underlying complaint filed by plaintiff against Hand and Boyle under

a homeowners’ insurance policy issued to Boyle. That action sought

damages against Hand for negligence and false imprisonment and

against Boyle for negligent supervision and was based on Hand’s

alleged sexual molestation of plaintiff. The trial court, Joyce Dragan-

chuk, J., granted summary disposition in favor of Citizens, holding

that the policy’s exclusion from coverage of bodily injury arising out

of sexual molestation applied. Plaintiff appealed.

The Court of Appeals held:

1. Although the policy does not define “sexual molestation,” a

dictionary defines “molest” as “to make indecent sexual advances

to” and “to assault sexually.” The conduct that plaintiff alleges

that defendant Hand engaged in clearly and unambiguously falls

within this definition.

2. The language of the exclusion in this case does not require that

there be an intent to injure or that injury be reasonably foreseeable.

Therefore, whether Hand intended to injure plaintiff is irrelevant.

The exclusion applies, without regard to whether Hand intended to

injure plaintiff, because the underlying complaint clearly alleges that

plaintiff’s injuries arose out of sexual molestation.

Affirmed.

The Keane Law Firm (by Christopher J. Keane) and

Robert S. Harrison & Associates, P.L.C. (by Robert S.

Harrison and Matthew D. Klakulak), for John Doe.

2010] D

OE V

ITIZENS

585

Cummins Woods (by Thomas E. Woods and Brian

Palmer Lick) for Michael Hand.

Plunkett Cooney (by Ernest R. Bazzana) for Citizens

Insurance Company of America.

Before: B

ANDSTRA

,P.J., and S

AWYER

and O

WENS

,JJ.

URIAM

. Plaintiff, John Doe, a minor, through his

mother and next friend, appeals an order of the circuit

court granting summary disposition under MCR

2.116(C)(8) and (10) in favor of defendant Citizens

Insurance Company of America on plaintiff’s complaint

seeking a declaration that Citizens has a duty to defend

and indemnify defendants Michael Hand, a minor, by

his guardian ad litem, Thomas Woods, and Renee Boyle

on an underlying complaint filed against Hand and

Boyle under a homeowners’ insurance policy issued to

Boyle. We affirm.

Plaintiff alleges that in 2006, when five years old, he

was on a public beach in Traverse City. Hand, then a

thirteen-year-old boy residing with Boyle, was taken by

Boyle to the same beach. At some point while Hand and

Doe were swimming or playing in the same area, Hand

asked Doe if he had to go to the bathroom. Both then went

to the public restroom where, at Hand’s request, Doe

disrobed and submitted to Hand’s performing fellatio on

Doe as well as Doe’s performing fellatio on Hand. Upon

leaving the restroom, Doe immediately informed others of

the event and the police were summoned.

Plaintiff instituted an action against Hand and

Boyle, alleging negligence and false imprisonment by

Hand and negligent supervision by Boyle. Thereafter,

plaintiff filed the instant action seeking a determina-

tion of Citizens’ obligations regarding the underlying

586 287 M

ICH

585 [Mar

suit.

The trial court granted summary disposition on

the basis of the “sexual molestation” exclusion in the

insurance policy.

Plaintiff first argues that the term “sexual molesta-

tion” is not defined in the policy and cannot serve as a

basis for excluding coverage. We disagree. The insur-

ance policy in this case does exclude coverage for bodily

injury “arising out of sexual molestation,” with the

term “sexual molestation” being undefined in the

policy. Where a term is not defined in an insurance

policy, it is to be interpreted in accordance with its

“ ‘commonly used meaning.’ ” Allstate Ins Co v Mc-

Carn, 466 Mich 277, 280; 645 NW2d 20 (2002). Accord-

ing to Random House Webster’s College Dictionary

(1997), the definition of “molest” includes “to make

indecent sexual advances to” and “to assault sexually.”

The conduct that plaintiff alleges that defendant Hand

engaged in clearly and unambiguously falls within this

definition. See, also, e.g., American Commerce Ins Co v

Porto, 811 A2d 1185, 1199 (RI, 2002) (the term “sexual

molestation” includes many activities, including oral

sexual activity).

Plaintiff additionally argues that the term “sexual

molestation” only refers to actions of an adult commit-

ted on a child. But plaintiff only refers us to cases where

the molester was, in fact, an adult. None of these cases,

however, held that a molester must be an adult.

Finally, plaintiff’s reliance on Fire Ins Exch v Diehl,

450 Mich 678; 545 NW2d 602 (1996), overruled in part

It is unclear from plaintiff’s pleadings whether the underlying suit

was ever formally tendered to Citizens to defend Boyle and Hand and

whether Citizens formally declined to defend. In any event, Citizens did

file a motion for summary disposition in the instant action arguing that

it has no duty to defend or indemnify and this appeal is focused on that

issue.

2010] D

OE V

ITIZENS

587

in Wilkie v Auto-Owners Ins Co, 469 Mich 41, 59-63

(2003), is similarly misplaced. Plaintiff argues that

Diehl stands for the proposition that where an action is

based upon a minor’s performing sexual acts on another

minor, intent cannot be inferred as a matter of law.

While Diehl, supra at 689-690, did reach such a holding,

it did so in analyzing policy exclusions for intentional

injury and for injuries caused from intentional acts that

are reasonably foreseeable. While similar exclusions are

found in the insurance policy at issue in this case, those

exclusions are not relevant to this appeal. At issue is a

separate exclusion for any injury “arising out of sexual

molestation,” and the language of that exclusion does

not require that there be an intent to injure or that

injury be reasonably foreseeable.

The rationale of Diehl is that a child actor, unlike an

adult, does not necessarily understand that sexual

activity with a minor may be harmful to the minor. Id.

at 691. But that rationale is relevant only with regard to

an exclusion that requires some intent to injure. The

exclusion at issue in the case at bar requires no such

intent. That is, whether Hand intended to injure Doe is

irrelevant to the case at bar. The policy excludes cover-

age for any injury arising out of sexual molestation, not

just intended injuries. Because plaintiff’s complaint

clearly alleges that Doe’s injuries arose out of sexual

molestation, the exclusion applies and it applies with-

out regard to whether Hand intended to injure Doe.

Accordingly, we conclude that the trial court properly

granted summary disposition in favor of defendant

Citizens.

Affirmed. Defendant Citizens may tax costs.

588 287 M

ICH

585 [Mar

ALPHA CAPITAL MANAGEMENT, INC v RENTENBACH

Docket No. 287280. Submitted December 7, 2009, at Detroit. Decided

March 23, 2010, at 9:05 a.m.

Alpha Capital Management, Inc., brought an action in the Wayne

Circuit Court, John H. Gillis, Jr., J., against attorney Paul R.

Rentenbach and his law firm, Dykema Gossett, P.L.L.C., and another

of the firm’s attorneys, alleging beach of fiduciary duties, tortious

interference with contractual relations and with prospective eco-

nomic and business advantages, and aiding and abetting Robert

Warfield in violating his contractual covenant not to complete with

Alpha Capital. The trial court denied a motion for summary disposi-

tion by Dykema Gossett and Rentenbach (hereafter defendants). The

Court of Appeals denied defendants’ application for leave to appeal in

an unpublished order, entered October 27, 2006 (Docket No. 272819).

The Supreme Court also denied leave to appeal. 477 Mich 1059

(2007). Following a trial, the jury returned a verdict finding that

defendants had not breached a fiduciary duty to Alpha Capital,

former employees of Alpha Capital tortiously interfered with con-

tracts or business relations of Alpha Capital, defendants did not aid or

abet the tortious interference, and Warfield did not breach the

covenant not to compete. The trial court entered a judgment of no

cause of action. Alpha Capital appealed.

The Court of Appeals held:

1. An attorney’s duties of loyalty and confidentiality continue

even after an attorney-client relationship concludes. However, the

continuing duties of loyalty and confidentiality apply only to

matters in which the new client’s interests qualify as both adverse

to those of the former client and substantially related to the

subjects of the attorney’s former representation.

2. A three-part test for examining the circumstances under which

an adverse subsequent representation may be deemed substantially

related to the legal services done for a former client asks: What is the

nature and scope of the prior representation at issue? What is the

nature of the present lawsuit against the former client? And, in the

course of the prior representation, might the client have disclosed to

his attorney confidences that could be relevant to the present action,

and in particular, could any such confidences be detrimental to the

2010] A

LPHA

APITAL V

ENTENBACH

589

former client in the current litigation? Application of this test in this

case yields a conclusion that material questions of fact precluded

summary determination whether defendants breached their fidu-

ciary duties to Alpha Capital.

3. The trial court properly denied Alpha Capital’s motions for

partial summary disposition, a directed verdict, and judgment

notwithstanding the verdict because the expert testimony di-

verged with respect to whether defendants’ representation of

Alpha Capital had a substantial relationship to the work they later

performed for Alpha Partners, L.L.C., and its employees.

4. Application of the three-part test shows that substantial

evidence supports the jury’s conclusion that Alpha Capital failed to

prove a breach of defendants’ fiduciary duties. Defendants did not

as a matter of law breach their fiduciary duties.

5. Because Alpha Capital indisputably breached its obligation

under the stock purchase agreement with Warfield, the unambigu-

ous terms of the agreement precluded Alpha Capital’s enforcement

of Warfield’s covenant not to complete. Therefore, Rentenbach

correctly informed Warfield that he could disregard the covenant

not to compete. The trial court should have decided this issue in

favor of Warfield as a matter of law.

6. The trial court did not abuse its discretion under the facts of

this case by limiting the time allocated for the examination and

cross-examination of certain witnesses. The trial court abused its

discretion in refusing to permit Alpha Capital to make an offer of

proof in accordance with MRE 103(a)(2). However, Alpha Capital

later fully preserved its claim by filing a separate offer of proof,

rendering harmless the trial court’s ruling that did not allow the

earlier offer of proof.

7. The trial court did not abuse its discretion by allowing

defense counsel to refer to the settlement in a prior action by

Alpha Capital against Warfield and others because Alpha Capital

raised the issue first. Any error in this regard was harmless.

8. The trial court did not abuse its discretion by declining to

remove a certain juror that Alpha Capital alleged was not impar-

tial. Alpha Capital failed to substantiate its claim.

9. Although somewhat incomplete and imperfect, the trial

court’s jury instructions fairly and accurately presented the theo-

ries of the parties and the applicable law and did not substantially

prejudice Alpha Capital’s case. The trial court’s refusal to give

supplemental instructions requested by Alpha Capital did not

prejudice Alpha Capital.

Affirmed.

590 287 M

ICH

589 [Mar

1. A

TTORNEY AND

LIENT —

UTIES OF

OYALTY AND

ONFIDENTIALITY —

ORMER

LIENTS

An attorney’s duties of loyalty and confidentiality continue even

after an attorney-client relationship concludes; the continuing

duties of loyalty and confidentiality apply only to matters in which

a new client’s interests qualify as both adverse to those of the

former client and substantially related to the subjects of the

attorney’s former representation.

2. A

TTORNEY AND

LIENT —

UTIES OF

OYALTY AND

ONFIDENTIALITY —

ORMER

LIENTS

A three-part test may be employed to examine the circumstances

under which a lawyer’s subsequent representation of a client may

be deemed substantially related to the legal services performed for

a former client for purposes of determining a lawyer’s continuing

duties of loyalty and confidentiality to the former client: the test

examines the nature and scope of the prior representation, the

nature of the present lawsuit or representation, and whether, in

the course of the prior representation, might the client have

disclosed to the attorney confidences that could be detrimental to

the former client in the current litigation.

3. J

URY —

URY

NSTRUCTIONS

Jury instructions, even if somewhat imperfect, do not create error

requiring reversal if, on balance, the theories of the parties and the

applicable law are adequately and fairly presented to the jury; a

verdict should not be set aside unless failure to do so would be

inconsistent with substantial justice and reversal is not warranted

when an instructional error does not affect the outcome of the

trial.

Edward G. Lennon, PLLC (by Edward G. Lennon),

and Dennis A. Dettmer, PLLC (by Dennis A. Dettmer

and Gary L. Hermanson), for Alpha Capital Manage-

ment, Inc.

Kerr, Russell and Weber, PLC (by William A. Sank-

beil, Fred K. Herrmann, and David R. Janis), for Paul

Robert Rentenbach and Dykema Gossett, P.L.L.C.

Before: G

LEICHER

,P.J., and F

ITZGERALD

and W

ILDER

JJ.

2010] A

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LEICHER

,P.J. This action against a law firm and one

of its attorneys arises from events that transpired

during a separation of business partners and their joint

ownership interests in a company they had owned.

Plaintiff, Alpha Capital Management, Inc. (ACM), con-

tended that its counsel, defendants Dykema Gossett

PLLC and Dykema attorney Paul Rentenbach,

breached fiduciary duties and committed other action-

able wrongs by representing a former ACM shareholder

in a dispute concerning his buyout agreement. A jury

found in favor of defendants on all counts alleged in

ACM’s complaint. ACM appeals as of right the trial

court’s entry of a judgment of no cause of action

effectuating the jury verdict. We affirm.

I. UNDERLYING FACTS AND PROCEEDINGS

In 1991, Ralph Burrell founded ACM to provide finan-

cial consulting services to businesses, pension funds, and

nonprofit institutions. Initially, Burrell owned 55 percent

of ACM’s shares and Robert Warfield owned 45 percent.

Within a year, Burrell and Warfield each owned 50 percent

of ACM’s shares. Soon after ACM’s formation, the com-

pany hired Dawna Edwards as its portfolio manager. In

1996, ACM hired Napolean Rodgers as managing director

of its fixed income portfolio.

Before starting ACM, Burrell had established a success-

ful information systems and management consulting

business called SymCon. Dykema served as SymCon’s

general counsel. Burrell and Warfield retained Dykema in

1991 to supply the legal services necessary to form ACM.

After other Dykema lawyers completed ACM’s corporate

formation, Rentenbach provided ACM ongoing legal ser-

vices.

Rentenbach’s billing records reflect that he worked the following hours

on behalf of ACM from 1993 through 2001: 1993, 27.6; 1994, 8.6; 1995,

31.95; 1996, 8.3; 1997, 5.1; 1998, 34.3; 1999, 35; 2000, 13; 2001, 2.

592 287 M

ICH

589 [Mar

Problems developed over time between Burrell and

Warfield. They disagreed about Warfield’s compensa-

tion, Edwards’s equity share in the firm, and fees

received by Munder Capital Management

(35 percent

of ACM’s client revenues). Because ACM “didn’t grow

as quickly” as Burrell thought it would, it accrued

long-term debt payable to Munder Capital.

Warfield’s

compensation also created a debt. In 1998, Burrell

entered into negotiations with Munder Capital seeking

adjustments to the ACM-Munder Capital subadvisory

agreement, and eventually achieved a lower cost struc-

ture. Warfield and Edwards wanted ACM “to move

away from Munder” Capital, while Burrell hoped to

expand ACM’s relationship with Munder Capital.

In 1999, Burrell and Warfield began negotiating a

buyout agreement contemplating that Burrell would

buy Warfield’s shares or vice versa. Rentenbach

served as a “facilitator” during the negotiation ses-

sions. Burrell recalled that at a meeting in mid-April

1999, Rentenbach turned to Warfield to “get ap-

proval” to answer one of Burrell’s questions. Burrell

felt “shocked” because “Rentenbach is the corporate

attorney representing Alpha.” After the meeting,

Rentenbach informed Burrell that Warfield and Ed-

wards had asked him to represent them. On April 15,

1999, Rentenbach wrote a letter to Burrell’s personal

counsel, former Michigan Supreme Court Justice

ONRAD

ALLETT

., advising that Rentenbach and

Dykema sought to represent Warfield and Edwards

From ACM’s inception, it had a “sub-advisory relationship” with

Munder Capital. Munder Capital operates as “an independent invest-

ment advisor” that manages assets for nonprofits or governmental units.

Burrell explained that ACM’s “business model and business strategy was

to align with a firm that was in the industry, specifically, Munder, because

it’s very difficult to start an investment management firm.”

By October 2003, the debt to Munder Capital approximated $340,000.

2010] A

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“with respect to the negotiations that will take place

regarding [Burrell’s] proposed disengagement.”

Rentenbach requested that Burrell waive any conflict

of interest that might arise from “our firm’s repre-

sentation of [Burrell] and his other business interest

(Symcon, Inc.).” Burrell declined to waive the con-

flict, but Rentenbach continued to represent Warfield

and Edwards. Rentenbach’s billing records reveal

that he proceeded to prepare draft agreements in

contemplation of a buyout by one shareholder or the

other, while Dykema sent ACM invoices for Renten-

bach’s time.

In July 2000, Burrell and Warfield signed a document

entitled “Alpha Capital Management, Inc. Process for

Separation/Buy-Out,” which contemplated a three-phased

stock purchase process. In phase I, Burrell would present

an offer to Warfield, which Warfield could accept or

counter. If Warfield did neither, phase II would commence,

during which a facilitator would assist the parties in

crafting a transaction. If that failed, in phase III Burrell

would “make[] a final written offer to sell his shares to Mr.

Warfield or to purchase Mr. Warfield’s shares,” and Warf-

ield would “decide[] whether to buy Mr. Burrell’s shares or

to sell his shares to Mr. Burrell.”

Phases I and II did not result in ACM’s sale. On April

20, 2001, the parties embarked on phase III. In a

document drafted by Burrell’s counsel, entitled “Offer

to Purchase and Stock Purchase Agreement,” Burrell

offered either to sell his ACM shares to Warfield or to

purchase Warfield’s shares.

In May 2001, Warfield

elected to sell his shares to Burrell, and in June 2001

Burrell assigned to ACM his right to purchase Warf-

ield’s shares. The deal closed on October 24, 2001, and

At this point, Honigman Miller Schwartz and Cohn represented

Burrell and Rentenbach represented Warfield.

594 287 M

ICH

589 [Mar

Burrell then terminated Dykema’s services on behalf of

ACM. Warfield, Edwards, and Rodgers continued to

work for ACM.

Section 2 of the stock purchase agreement governed

the “purchase price and payment” applicable to the

seller’s shares. Section 2.1 required an initial payment

of $75,000 at the closing and § 2.2 mandated execution

of a promissory note in the amount of $1,425,000, to be

paid in 20 equal quarterly installments. Section 2.8

addressed what would happen if the buyer became

“unwilling or unable to pay any remaining amounts

owing to Seller[.]” In that event, the seller had 30 days

in which to exercise an option “to obtain all ownership

interests in” ACM for $1.00 “in full satisfaction of the

Unpaid Amounts[.]” If the seller failed to exercise that

option, “any claims of Seller to the Unpaid Amounts

will be deemed to be waived and released as of the end

of such 30 day period.” The stock purchase agreement

also contained mutual covenants not to compete effec-

tive for three years after the closing date.

In July 2003, Burrell notified Warfield that he could not

make the quarterly payment required under the buyout

agreement unless Warfield approved a secured loan “of up

to $150,000 from SymCon to Alpha.” Warfield did not

respond to this letter, and Burrell did not make the July

payment. On August 1, 2003, Burrell wrote to Warfield

and again sought approval for a loan. Warfield replied on

August 4, 2003, declining to approve the loan on the basis

that “I am not required to consent to this type of a

transaction under the stock buy-out agreement... and

this arrangement is unfair to the other creditors of Alpha

Capital (principally me and Munder Capital) because no

other creditor has a lien on Alpha’s assets.” Warfield’s

letter continued, “Since I have not received the payment

due on July 31, I hereby declare Alpha Capital in default

2010] A

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595

under the Note.” On August 29, 2003, Warfield sent

Burrell another letter stating in part, “Further, I am

notifying Alpha and you that due to Alpha’s non-payment

of its obligations, my covenant not to compete with Alpha

is no longer applicable, pursuant to the provisions of

Section 6.1(i) of the Offer to Purchase and Stock Purchase

Agreement dated April 20, 2001.”

Burrell responded on September 24, 2003, informing

Warfield that “by receipt of this letter . . . I am issuing

a Refusal Notice pursuant to Paragraph 2.8 of our

agreement.” The pertinent portion of ¶ 2.8 sets forth:

If, at any point prior to or on the date which is 45 days

following the end of the 20th full fiscal quarter of the

Company following the Closing Date (the “Last Payment

Date”), Buyer notifies Seller, in writing (the “Refusal

Notice”), that Buyer is unwilling or unable to pay any

remaining amounts owing to Seller pursuant to the Prom-

issory Note or Sections 2.4, 2.5 or 2.6 of the Offer (the

“Unpaid Amounts”), Seller will have the right, upon giving

written notice to Buyer within 30 days of either Seller’s

receipt of the Refusal, to obtain all ownership interests in

the Company then owned by the Buyer (and the Guarantor,

if applicable) for $1.00 paid to Buyer or Guarantor, as

applicable, in full satisfaction of the Unpaid Amounts, and

the parties will cooperate to effectuate a transfer of such

ownership interests to Seller.

On October 10, 2003, Warfield declined to exercise his

right to purchase ownership of ACM.

Rentenbach supplied legal services to Warfield, Rodg-

ers, and Edwards both before and after Burrell notified

Warfield of his inability to make the July 31, 2003,

payment. Rentenbach’s billing records reflect that on

August 4, 2003, Rentenbach spent time drafting a

default letter to Burrell. In August 2003, Rentenbach

received a call from Warfield inquiring whether Bur-

rell’s missed quarterly payment rendered unenforce-

596 287 M

ICH

589 [Mar

able the stock purchase agreement’s noncompete

clause. Rentenbach read the stock purchase agreement

and advised Warfield that Burrell’s breach negated the

noncompete clause. On August 25, 2003, Rentenbach

met with Warfield, Rodgers, and Edwards and reviewed

Warfield’s letter of that date to Burrell. Two days later,

Rentenbach drafted an operating agreement for Alpha

Partners, L.L.C. On October 9, 2003, the day before

Warfield declined to purchase ACM, Rentenbach faxed

to Rodgers a schedule describing the backgrounds of

Alpha Partners’s three founding partners: Warfield,

Edwards, and Rodgers. Rodgers and Edwards resigned

from ACM on October 15, 2003. By the end of October

2003, most of ACM’s clients had withdrawn their funds

from ACM and invested them with Alpha Partners.

On November 4, 2003, ACM and Burrell sued Alpha

Partners, Warfield, Edwards, and Rodgers in the Oak-

land Circuit Court seeking injunctive relief and dam-

ages. Honigman Miller Schwartz and Cohn represented

the plaintiffs in the Oakland Circuit Court action and

Dykema represented the defendants. The plaintiffs

alleged that the defendants had violated the noncom-

pete clauses in their contracts and the stock purchase

agreement, misappropriated confidential information,

breached their fiduciary duties to ACM, and tortiously

interfered with ACM business relationships. The Oak-

land Circuit Court denied injunctive relief, and the

parties ultimately settled the damages claims for a

relatively small amount—a $60,000 payment to ACM

and Burrell.

On April 28, 2006, ACM filed the instant case in the

Wayne Circuit Court against Dykema and Rentenbach,

alleging breach of fiduciary duty (count I), tortious

Burrell testified in this case that he had invested approximately

$300,000 in the Oakland Circuit Court litigation.

2010] A

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597

interference with contractual relations and with pro-

spective economic and business advantage (count II),

and aiding and abetting Warfield in violating his cov-

enant not to compete (count III). In June 2006, defen-

dants moved for summary disposition pursuant to MCR

2.116(C)(7) and (8). They contended that the allega-

tions in ACM’s complaint arose solely from their prior

attorney-client relationship with ACM, and that the

statute of limitations barred this malpractice claim. In

the alternative, defendants argued that the plaintiffs’

release of the Oakland Circuit Court defendants in the

prior litigation, Alpha Partners, Warfield, Edwards, and

Rodgers, barred an “aiding and abetting” theory

against defendants as a matter of law. They also averred

that the covenant not to compete had dissolved before

the formation of Alpha Partners.

ACM answered that the breach of fiduciary duty

claim did not sound in legal malpractice, but rather was

properly pleaded as a separate cause of action subject to

a three-year period of limitations. ACM denied that the

release barred its claims for aiding and abetting, and

contended that the covenant not to compete remained

in effect when defendants formed Alpha Partners. The

trial court denied defendants’ motion, and this Court

denied their application for leave to appeal. Alpha

Capital Mgt[,] Inc v Rentenbach, unpublished order of

the Court of Appeals, entered October 27, 2006 (Docket

No. 272819). The Supreme Court also denied leave to

appeal. 477 Mich 1059 (2007).

On May 19, 2008, a jury trial commenced. The trial

concluded on June 3, 2008, when the jury returned a

special verdict finding that: (1) defendants had not

breached a fiduciary duty to ACM; (2) former employees

of ACM tortiously interfered with contracts or business

relationships of ACM; (3) defendants did not aid or abet

598 287 M

ICH

589 [Mar

the tortious interference; and (4) Warfield did not

breach the covenant not to compete.

II. SUMMARY DISPOSITION RULINGS

A. STANDARD OF REVIEW

ACM initially contests the propriety of the trial court’s

denial of ACM’s motion for partial summary disposition

concerning its breach of fiduciary duty claim. Because the

trial court considered documentation beyond the plead-

ings in reaching its ruling and denied the motion on the

basis of the existence of conflicting questions of fact, we

review the court’s ruling under MCR 2.116(C)(10). Walsh

v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

This Court reviews de novo a trial court’s summary

disposition ruling. Id. “Summary disposition is appropri-

ate under MCR 2.116(C)(10) if there is no genuine issue

regarding any material fact and the moving party is

entitled to judgment as a matter of law.” West v Gen

Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

ACM additionally asserts that the trial court should

have granted a directed verdict or judgment notwith-

standing the verdict (JNOV) regarding its breach of

fiduciary duty count. We also review de novo a trial

court’s rulings on motions for a directed verdict and

JNOV. Sniecinski v Blue Cross & Blue Shield of Michi-

gan, 469 Mich 124, 131; 666 NW2d 186 (2003). “A

motion for directed verdict or JNOV should be granted

only if the evidence viewed in th[e] light [most favorable

to the nonmoving party] fails to establish a claim as a

matter of law.” Id.

B. BREACH OF FIDUCIARY DUTY CLAIM

Defendants do not dispute that they owed ACM a

fiduciary duty premised on ACM’s status as their

2010] A

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599

former client. See Rippey v Wilson, 280 Mich 233, 243;

273 NW 552 (1937) (observing that “[t]he relationship

between client and attorney is a fiduciary one, not

measured by the rule of dealing at arm’s length”);

Meyer & Anna Prentis Family Foundation, Inc v Bar-

bara Ann Karmanos Cancer Institute, 266 Mich App 39,

47; 698 NW2d 900 (2005) (“Damages may be obtained

for a breach of fiduciary duty when a position of

influence has been acquired and abused, or when con-

fidence has been reposed and betrayed.”) (quotation

marks and citation omitted). Defendants insist that

material questions of fact precluded a grant of summary

disposition, a directed verdict, or JNOV with respect to

whether they breached their fiduciary duty by working

on behalf of Alpha Partners, Warfield, Edwards, and

Rodgers in 2003.

Few Michigan cases elaborate concerning the sub-

stantive elements of a former client’s breach of fidu-

ciary duty claim against an attorney. ACM relies on the

seminal Michigan case addressing an attorney’s liability

for breach of fiduciary duty, Fassihi v Sommers,

Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich App

509; 309 NW2d 645 (1981).

However, Fassihi does not

resolve the question whether, as a matter of law, defen-

dants’ conduct violated their fiduciary duties.

Fassihi has been described as “the preeminent case recognizing a

stakeholder’s claim of breach of fiduciary duty against an attorney who

represents only the business.” Rossman, The descendants of Fassihi: A

comparative analysis of recent cases addressing the fiduciary claims of

disgruntled stakeholders against attorneys representing closely-held en-

tities, 38 Ind L R 177 (2005). The Massachusetts Supreme Court singled

out Fassihi as “a well-reasoned opinion supporting” the view that “even

though counsel for a closely held corporation does not by virtue of that

relationship alone have an attorney-client relationship with the indi-

vidual shareholders, counsel nevertheless owes each shareholder a fidu-

ciary duty.” Schaeffer v Cohen, Rosenthal, Price, Mirkin, Jennings &

Berg, PC, 405 Mass 506, 513; 541 NE2d 997 (1989).

600 287 M

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589 [Mar

The plaintiff in Fassihi, a radiologist, owned 50

percent of Livonia Physicians X-Ray, P.C., a closely

held corporation. The defendant law firm represented

Livonia Physicians and had drafted “all the agree-

ments pertaining to membership in the professional

corporation.” Id. at 513. Dr. Rudolfo Lopez owned the

other half of the corporation’s shares. Id. at 511-512.

Lopez had a prior agreement with St. Mary’s Hospital

that invested him with “personal and sole responsi-

bility for staffing [its] radiology department.” Id.at

513. Lopez and Fassihi practiced together for about

18 months before Lopez reached the decision that he

no longer wished to associate with Fassihi. Id. at 512.

Lopez asked the defendant, Livonia Physicians’s law-

yer, to ascertain how Fassihi “could be ousted from

Livonia Physicians....” Id. In June 1975, an em-

ployee of the defendant delivered Fassihi a letter

advising that Livonia Physicians’s board of directors

had met in Fassihi’s absence and voted to terminate

his employment. Id. at 513. Fassihi then learned that

due to his “termination” from Livonia Physicians, he

could no longer practice at St. Mary’s Hospital. Id.

Fassihi filed a complaint asserting that the defendant

had “represented both Lopez individually and the

professional corporation without disclosing to him

this dual representation.” Id.

This Court identified the “difficult question” of first

impression presented in the case as “what duties, if any,

an attorney representing a closely held corporation has

to a 50% owner of the entity, individually.” Id. at 514.

The Court began its analysis by adopting the proposi-

tion that “the attorney’s client is the corporation and

not the shareholders.” Id. Notwithstanding that no

attorney-client relationship existed between Fassihi

and the defendant law firm, the Court cautioned that

2010] A

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this fact did not categorically preclude a fiduciary duty

from arising between the law firm and Fassihi. Id. The

Court explained:

A fiduciary relationship arises when one reposes faith,

confidence, and trust in another’s judgment and advice.

Where a confidence has been betrayed by the party in the

position of influence, this betrayal is actionable, and the

origin of the confidence is immaterial. Furthermore,

whether there exists a confidential relationship apart from

a well defined fiduciary category is a question of fact. [Id.at

515 (citation omitted).]

The Court further noted the “difficulties” inherent in

“treating a closely held corporation with few sharehold-

ers as an entity distinct from the shareholders.” Id.at

516. “Instances in which the corporation attorneys

stand in a fiduciary relationship to individual share-

holders are obviously more likely to arise where the

number of shareholders is small.” Id. In these situa-

tions, “the corporate attorneys, because of their close

interaction with a shareholder or shareholders, simply

stand in confidential relationships in respect to both the

corporation and individual shareholders.” Id.

This Court in Fassihi examined whether, by virtue of

“close” attorney-shareholder interaction giving rise to

“confidential relationships,” a distinct fiduciary rela-

tionship existed between an attorney for a closely held

corporation and a shareholder. Id. at 516. Because

Fassihi and the defendant law firm lacked an attorney-

client relationship, any liability on the part of the law

firm arose on the basis of a cause of action—breach of

fiduciary duty—separate and apart from the defen-

dant’s breach of a traditional duty of care. Here, the

parties do not dispute that defendants and ACM had a

fiduciary relationship through October 2001. Conse-

quently, Fassihi does not resolve the issue at the core of

602 287 M

ICH

589 [Mar

the parties’ dispute, whether defendants violated the

fiduciary duty they owed to ACM by providing legal

services to Warfield, Rodgers, and Edwards in 2003.

The common law has long recognized that an attor-

ney’s fiduciary duties extend to both current and

former clients. For example, in T C Theatre Corp v

Warner Bros Pictures, Inc, 113 F Supp 265, 268 (SD NY,

1953), the district court explained:

A lawyer’s duty of absolute loyalty to his client’s interests

does not end with his retainer. He is enjoined for all time,

except as he may be released by law, from disclosing matters

revealed to him by reason of the confidential relationship.

Related to this principle is the rule that where any substantial

relationship can be shown between the subject matter of a

former representation and that of a subsequent adverse

representation, the latter will be prohibited.

The United States Court of Appeals for the Sixth

Circuit has declared it “well settled that an attorney

who has acted for one party cannot render professional

services in the same matters to the other party, and it

makes no difference in this respect whether the relation

itself has terminated, for the obligation of fidelity still

continues.” United States v Bishop, 90 F2d 65, 66 (CA 6,

1937). In Consol Theatres, Inc v Warner Bros Circuit

Mgt Corp, 216 F2d 920, 927 (CA 2, 1954), the United

States Court of Appeals for the Second Circuit held that

Canon 6 of the American Bar Association Canons of

Professional Ethics “is devised to protect the secrets

and confidences reposed in the attorney by his clients,”

and required the disqualification of an attorney repre-

senting the plaintiff in an antitrust action “substan-

tially similar” to matters on which the attorney had

worked on behalf of the defendants.

Id. at 927.

The Second Circuit in Consol Theatres, id. at 926, described the

American Bar Association Canons of Professional Ethics as “a codifica-

2010] A

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These descriptions of an attorney’s obligation to a

former client derive from the principle that the attor-

ney’s duties of loyalty and confidentiality continue even

after an attorney-client relationship concludes. But

under the common law and pursuant to the rules of

professional responsibility, the continuing duties of loy-

alty and confidentiality apply only to matters in which

the new client’s interests qualify as both adverse to

those of the former client and substantially related to

the subjects of the attorney’s former representation.

Michigan Rule of Professional Conduct 1.9(a) embodies

these concepts as follows: “A lawyer who has formerly

represented a client in a matter shall not thereafter

represent another person in the same or a substantially

related matter in which that person’s interests are

materially adverse to the interests of the former client

unless the former client consents after consultation.”

An attorney does not necessarily breach his or her duty

of loyalty and confidentiality to a former client by

representing a new client whose interests are merely

adverse to those of the former client. The attorney

breaches his or her fiduciary duty to a former client

only by undertaking representation of a client who has

interests both adverse and substantially related to work

the attorney performed for the former client.

tion of the more important limitations on legal practice broadly deemed

necessary for the protection of clients.” At that time, Canon 6 read, in

pertinent part:

The obligation to represent the client with undivided fidelity

and not to divulge his secrets or confidences forbids also the

subsequent acceptance of retainers or employment from others in

matters adversely affecting any interest of the client with respect

to which confidence has been reposed.

The comments to MRPC 1.7, which sets forth the “General Rule”

regarding conflicts of interest, include the following observation: “[S]i-

multaneous representation in unrelated matters of clients whose inter-

604 287 M

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589 [Mar

A number of courts around the country have exam-

ined the circumstances under which an adverse subse-

quent representation may be deemed substantially re-

lated to legal services done for a former client. Most

commonly, courts have adopted a three-part test set

forth in INA Underwriters Ins Co v Nalibotsky, 594 F

Supp 1199, 1206 (ED Pa, 1984):

1. What is the nature and scope of the prior represen-

tation at issue?

2. What is the nature of the present lawsuit against the

former client?

3. In the course of the prior representation, might the

client have disclosed to his attorney confidences which

could be relevant to the present action? In particular, could

any such confidences be detrimental to the former client in

the current litigation?

The district court in INA Underwriters further elabo-

rated,

In answering the first question, the court should consider

both the purposes for which the attorney was employed and

the facts underlying the matter for which the attorney was

responsible. However, the focus should be upon the reasons

for the retention of counsel and the tasks which the attorney

was employed to perform. Once the purposes for which the

attorney was employed are clear, it is then possible to consider

the type of information which a client would impart to an

attorney performing such services for him.

The second question is relatively simple to answer. All

that is necessary is an evaluation of the issues raised in the

present litigation and the general facts upon which the

legal claims asserted in the present action are based.

In resolving the third question—whether confidential

information “might” have been received in the course of

ests are only generally adverse, such as competing economic enterprises,

does not require consent of the respective clients.”

2010] A

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605

the prior representation which would be substantially related

to the present representation—the court should not allow its

imagination to run free with a view to hypothesizing conceiv-

able but unlikely situations in which confidential information

“might” have been disclosed which would be relevant to the

present suit. “The lawyer ‘might have acquired’ the [substan-

tially related] information in issue if (a) the lawyer and the

client ought to have talked about particular facts during the

course of the representation, or (b) the information is of such

a character that it would not have been unusual for it to have

been discussed between lawyer and client during their rela-

tionship.” [Id., quoting Realco Servs, Inc v Holt, 479 F Supp

867, 871-872 (ED Pa, 1979).]

Application of the INA Underwriters analysis to the

instant facts yields a conclusion that material questions of

fact precluded summary determination whether defen-

dants breached their fiduciary duties to ACM. At trial,

three witnesses testified about whether Rentenbach

breached his fiduciary duties to ACM: Mallett, John

Beckerman, and Charles Borgsdorf. These witnesses of-

fered differing views regarding whether Rentenbach’s

work on behalf of Alpha Partners qualified as “substan-

tially related” to the work he had done for ACM.

Mallett described the “continuing ethical responsibil-

ity” to a former client as follows:

You have an ongoing relationship with this client. It

isn’t that you simply get to pick a new side at the end of the

day just because you say I no longer represent you; there-

fore, I can represent someone whose interests are adverse

to yours. It doesn’t work that way.

You can end your relationship with a client and many

times lawyers do because the relationship is broken down.

That doesn’t mean that you can then switch sides, it just

means that you can leave the field.

He opined that “the establishment of a competing firm

against [ACM] would have been directly adverse to

606 287 M

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589 [Mar

Alpha Capital,” and “I don’t think the conflict gets any

more direct than that.” Mallett added that “if...two

corporations are competing in the same field, competing

for the same client base and delivering the same prod-

uct,” a corporate counsel for one company could not

ethically represent the other without a waiver. During

his direct examination, Mallett did not specifically ad-

dress whether Rentenbach’s representation of Alpha

Partners and its principals had a substantial relation-

ship to defendants’ representation of ACM. On recross-

examination, Mallett acknowledged his awareness of

MRPC 1.7 regarding conflicts of interest and a relevant

comment to the rule:

[A] lawyer ordinarily may not act as advocate against a

person the lawyer represents in some other matter, even if

it is wholly unrelated. On the other hand, simultaneous

representation in unrelated matters of clients whose inter-

ests are only generally adverse, such as competing economic

enterprises, does not require consent of the respective clients.

[Emphasis added.]

Beckerman testified as ACM’s primary liability ex-

pert.

Beckerman opined that a lawyer can represent

two clients whose interests conflict only “when they

consent.” After an attorney-client relationship has

ended, Beckerman believed that “two duties remain;

one is the duty of confidentiality,” and the other is “the

duty of loyalty to the client[.]” Beckerman summarized

the duty of loyalty as follows: “[A] lawyer may not

represent a client adversely to a former client in a

matter that is the same or substantially the same in

which he has represented the former client unless the

former client consents.”

At the time of trial, Beckerman was an associate dean at Rutgers

University School of Law. He had served as a visiting professor at the

University of Michigan Law School between 1997 and 2000.

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In Beckerman’s view, during the 2001 discussions

about how to separate the interests of Burrell and

Warfield, Rentenbach still had an attorney-client

relationship with ACM. Beckerman concluded that in

2003, Rentenbach could not advise Warfield concern-

ing whether to purchase ACM’s stock for a dollar

“because it involved a direct conflict with a former

client.” Beckerman explained that this conflict arose

because

Mr. Rentenbach knew every detail of [the Munder Capital]

debt; how it was structured, was it secured, or unsecured.

He did that work for Alpha Capital, and he could not have

advised...Mr.Warfield. It’s inconceivable th[at] he could

have advised Mr. Warfield whether or not to purchase the

company for a dollar without some consideration of Alpha

Capital Management’s liabilities including the Munder

[Capital] debt.

[

]

Beckerman also expressed that defendants’ assis-

tance of Warfield, Edwards, and Rodgers in 2003 con-

stituted “a grotesque breach of their own fiduciary

duties.” He explained that defendants established Al-

pha Partners while Warfield and “Warfield’s confeder-

ates” remained employed at ACM:

[Rentenbach] did all of these things knowing that they

[Warfield, Edwards, and Rodgers] were still employees of

Alpha Capital Management, and knowing... that these

people were breaching their fiduciary duties. They were

starting their new company on company time, while they

were still employed by Alpha. So, he was assisting them in

breaching their fiduciary duties, and not only does the law

prohibit a lawyer from assisting someone else in breaching

their fiduciary duties, but it is clear that if a lawyer does

The record lacks any evidence suggesting that Rentenbach possessed

confidential information about the Munder Capital debt that Warfield did

not also possess.

608 287 M

ICH

589 [Mar

assist someone in breaching their fiduciary duties, the

lawyer will be held responsible for all losses that are caused

by that breach.

Finally, Beckerman opined that defendants breached

their duty of loyalty to ACM by representing Alpha

Partners and the individual defendants in the Oakland

Circuit Court litigation.

Borgsdorf, defendants’ expert witness,

agreed with

Beckerman that “to the extent that” defendants’ work

for Alpha Partners might be adverse to ACM, defen-

dants were precluded from performing legal services on

matters “substantially related” to the work defendants

had done for ACM. He continued, “There is [sic] lots of

ways to describe this, but you cannot attack on behalf of

another client, what you did for your former client.

And, I saw no evidence that Mr. Rentenbach of Dykema

ever did anything like that.” Borgsdorf pointed out that

lawyers who specialize often work for competing enti-

ties:

There are lawyers that specialize in helping dentists set

up their dental practices, and there are lawyers that might

have over the course of five years set up 50 different dental

practices, all in southeast Michigan, and there is no rule

that requires that each and every one of those dental

practices consent to this lawyer who specializes in putting

the paperwork together. It would dismantle the ability of

lawyers specializing from ever acting for more than one

client....

According to Borgsdorf, Rentenbach’s legal services for

Alpha Partners did not substantially relate to the work

he had done for ACM. Borgsdorf described as follows

defendants’ work on behalf of ACM:

At the time of trial, Borgsdorf was a shareholder with Hooper &

Hathaway, an Ann Arbor firm. He had taught legal ethics at the

University of Michigan Law School from 1989 through 1997.

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[A]ll that Dykema did was do the paperwork to help get

another business started. It filed articles of incorporation,

lawyers did that all the time. It helped fill out and perhaps

file the documents by which employees of Alpha Partners

could become registered with the Securities Exchange

Commission. This is the kind of bureaucratic stuff that

lawyers help investment management firms do all the time.

There is nothing improper about that.

Given that the expert testimony diverged with respect

to whether defendants’ representation of ACM had a

substantial relationship to the work they performed for

Alpha Partners and its employees, the trial court properly

denied ACM’s motions for partial summary disposition, a

directed verdict, and JNOV. Furthermore, applying the

INA Underwriters factors to the evidence introduced at

trial, substantial evidence supports the jury’s conclusion

that ACM failed to prove a breach of defendants’ fiduciary

duties. Neither Beckerman’s trial testimony nor ACM’s

appellate brief identifies any confidential information in

defendants’ possession that somehow advantaged Alpha

Partners. Even assuming that Rentenbach possessed con-

fidential information concerning the Munder Capital

debt, ACM neglected to explain how this confidential

information advantaged Warfield. Without question, ACM

and Alpha Partners had adverse interests. But Borgsdorf

correctly noted that defendants apparently performed

only the most routine, “bureaucratic” work on behalf of

ACM, and that aside from sharing the same general

nature, these legal services lack any substantial relation-

ship to Rentenbach’s activities on behalf of Alpha Part-

ners. Accordingly, we reject ACM’s position that as a

matter of law defendants breached their fiduciary duties.

C. BREACH OF COVENANT NOT TO COMPETE CLAIM

ACM next characterizes as erroneous the trial court’s

denial of summary disposition in its favor with respect

610 287 M

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589 [Mar

to the complaint count asserting that Rentenbach

“aided and abetted Warfield in violating” the stock

purchase agreement’s covenant not to compete. The

trial court found that the contractual sections at issue,

§§ 2.8 and 6.1(i), gave rise to “reasonable but conflicting

interpretations,” and continued, “Hence, the Court

further finds that they are ambiguous. It further fol-

lows that summary disposition is inappropriate since

further factual development is necessary to determine

the intent of the parties.” We again consider de novo

this portion of the trial court’s summary disposition

ruling. Walsh, 263 Mich App at 621. We also review de

novo questions involving the proper interpretation of a

contract and the legal effect of a contractual clause.

McDonald v Farm Bureau Ins Co, 480 Mich 191, 197;

747 NW2d 811 (2008).

A contract must be interpreted according to its plain

and ordinary meaning. St Paul Fire & Marine Ins Co v

Ingall, 228 Mich App 101, 107; 577 NW2d 188 (1998).

Our interpretation of contractual language is further

guided by the following precepts:

Under ordinary contract principles, if contractual lan-

guage is clear, construction of the contract is a question of

law for the court. If the contract is subject to two reason-

able interpretations, factual development is necessary to

determine the intent of the parties and summary disposi-

tion is therefore inappropriate. If the contract, although

inartfully worded or clumsily arranged, fairly admits of but

one interpretation, it is not ambiguous. The language of a

contract should be given its ordinary and plain meaning.

[Meagher v Wayne State Univ, 222 Mich App 700, 721-722;

565 NW2d 401 (1997) (citations omitted).]

“A contract is said to be ambiguous when its words may

reasonably be understood in different ways.” Raska v

Farm Bureau Mut Ins Co of Mich, 412 Mich 355, 362;

314 NW2d 440 (1982). The trier of fact must determine

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the meaning of an ambiguous contract. Badiee v Brigh-

ton Area Sch, 265 Mich App 343, 351; 695 NW2d 521

(2005). However, if contractual language is unambigu-

ous and no reasonable person could differ concerning

application of the term or phrase to undisputed mate-

rial facts, summary disposition should be awarded to

the proper party. Rossow v Brentwood Farms Dev, Inc,

251 Mich App 652, 658; 651 NW2d 458 (2002).

According to § 6.1(i) of the stock purchase agree-

ment:

Notwithstanding anything herein to the contrary, the

covenants of Seller contained in this Section 6.1 shall not

apply, and Seller shall not be held liable for any breach

thereof, if Buyer or Guarantor has breached the Buyer’s

and Guarantor’s Representations and Warranties or any

covenant or obligation contained in this Offer or any of the

Related Agreements, including, without limitation, the

obligation to pay and perform the Obligations.

Section 2.8 identifies the buyer’s obligations if it is

“unwilling or unable to pay”:

If...Buyer notifies Seller, in writing (the “Refusal

Notice”), that Buyer is unwilling or unable to pay any

remaining amounts owing to Seller pursuant to the

Promissory Note or Sections 2.4, 2.5 or 2.6 of the Offer

(the “Unpaid Amounts”), Seller will have the right, upon

giving written notice to Buyer...to obtain all owner-

ship interests in the Company then owned by the

Buyer... for $1.00 paid to Buyer or Guarantor, as

applicable, in full satisfaction of the Unpaid Amounts,

and the parties will cooperate to effectuate a transfer of

such ownership interests to Seller. In the event Seller

fails to make such election within such 30-day period,

such ownership interests in the Company shall not be

transferred but any claims of Seller to the Unpaid

Amounts will be deemed to be waived and released as of

the end of such 30 day period.

612 287 M

ICH

589 [Mar

ACM insists that it did not breach its “obligation to

pay” under the contract because the agreement contem-

plated an alternative form of performance, written

notice of an inability to pay, that triggered the seller’s

right to buy the company for $1. However, the plain

language of the contract refutes ACM’s interpretation.

Under § 6.1(i), the covenant not to compete “shall not

apply, and Seller shall not be held liable for any breach

thereof,” if the buyer, ACM, breaches “any covenant or

obligation contained in this Offer or any of the Related

Agreements, including, without limitation, the obliga-

tion to pay and perform the Obligations.” This language

is not reasonably susceptible to more than one inter-

pretation, and thus is not ambiguous. Because ACM

indisputably breached its obligation to pay Warfield, the

unambiguous contractual term precluded its enforce-

ment of the seller’s covenant not to compete. This

result comports with Michigan law, specifically the

principle that “ ‘one who first breaches a contract

cannot maintain an action against the other contracting

party for his subsequent breach or failure to perform.’ ”

Michaels v Amway Corp, 206 Mich App 644, 650; 522

NW2d 703 (1994), quoting Flamm v Scherer, 40 Mich

App 1, 8-9; 198 NW2d 702 (1972). Consequently, Rent-

enbach correctly informed Warfield that Burrell’s

missed July 2003 payment justified Warfield’s breach or

disregard of the covenant not to compete.

In support of ACM’s position, it proffers an “alterna-

tive performance contract” theory, which we reject for

multiple reasons. First, the case on which ACM princi-

pally relies does not support its argument. In McBain v

Pratt, 514 P2d 823, 824-825 (Alas, 1973), an attorney

executed a marital separation agreement in which he

agreed to bequeath to a trust for the benefit of his

children either his law practice or $42,000, representing

the current worth of the law practice. In his final will,

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the attorney left the law practice to his new wife. Id.at

825. The Alaska Supreme Court determined that the

measure of damages for the breach of the separation

agreement was $42,000, holding that “the trust is

entitled to damages measured according to the least

onerous alternative[.]” Id. at 827. The Alaska Supreme

Court explained that “ ‘[a]n alternative contract is one

in which a party promises to render some of two or

more alternative performances either one of which is

mutually agreed upon as the bargained-for equivalent

given in exchange for the return performance by the

other party[.]’ ” Id., quoting 5A Corbin on Contracts,

§ 1079, pp 453-454 (1964). As described in McBain and

by Professor Corbin, the alternative contract doctrine

creates two or more mechanisms for performance of

contractual obligations, but does not serve to excuse a

contractual breach or to eliminate other contractual

obligations.

Second, the contractual language here does not sup-

port ACM’s contention that the parties entered into or

intended an “alternative performance contract.” Sec-

tion 2.8 envisioned that if the buyer, ACM, was “unwill-

ing or unable to pay any remaining amounts owing to

Seller pursuant to the Promissory Note,” the seller had

the right to purchase ACM for $1, “in full satisfaction of

the Unpaid Amounts[.]” If the seller elected not to

purchase the company, “any claims of Seller to the

Unpaid Amounts will be deemed to be waived and

released....”Theplain language of this clause reflects

that if ACM breached its agreement to pay Warfield, he

could either elect to buy the company or simply forego

further payment. These elections describe alternative

remedies for ACM’s breach; they do not create alterna-

tive methods for Warfield’s performance.

614 287 M

ICH

589 [Mar

In summary, the trial court improperly submitted to

the jury the special question, “Do you find that Robert

Warfield breached the covenant not to compete?” On

the basis of the analysis described above, ACM’s failure

to pay under the promissory note breached the stock

purchase agreement and excused Warfield from abiding

by the covenant not to compete. The trial court should

have decided this issue as a matter of law in defendants’

favor. But the court’s error affords ACM no basis for

relief because as a matter of law Warfield legally com-

peted with ACM.

III. LIMITATION OF CROSS-EXAMINATION

ACM additionally complains that the trial court

improperly limited the total time for examinations of

key witnesses Warfield and Rentenbach to 1.5 hours,

allowing each side only 45 minutes, an “arbitrary and

unreasonable” period given that (1) the relevant facts

occurred over the course of 10 years, and (2) the

limitation prevented ACM’s counsel from adequately

cross-examining Rentenbach regarding several critical

documents and impeaching him with deposition testi-

mony. ACM further argues that the trial court erred in

a related fashion by denying it an opportunity to make

an offer of proof documenting the information that

counsel would have elicited had the court permitted

more time. We review for an abuse of discretion a trial

court’s exercise of its power to control the interrogation

of witnesses. People v Marji, 180 Mich App 525, 532-

533; 447 NW2d 835 (1989). “To the extent that [the

court’s] inquiry requires examination of the meaning of

the Michigan Rules of Evidence, we address such a

question... de novo.” Waknin v Chamberlain, 467

Mich 329, 332; 653 NW2d 176 (2002).

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Pursuant to MRE 611(a), “[t]he court shall exercise

reasonable control over the mode and order of interro-

gating witnesses and presenting evidence so as to (1)

make the interrogation and presentation effective for

the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.” In Hartland

Twp v Kucykowicz, 189 Mich App 591, 595; 474 NW2d

306 (1991), this Court emphasized that “[t]he mode and

order of admitting proofs and interrogating witnesses

rests within the discretion of the trial court.” The trial

court in Hartland, on the fifth day of a trial, limited

witness examinations to one hour each for direct and

cross-examination, but later amended its ruling to

permit defense counsel more time with one expert

witness. Id. at 596. On appeal, this Court held, “The

record shows that the trial court properly exercised its

discretion in limiting the time for examination of wit-

nesses.” Id.

Here, when ACM called Burrell, its first witness, the

trial court announced that it would limit Burrell’s

examination to “[a]n hour a side.” The following collo-

quy ensued between the trial court and ACM’s counsel:

[ACM’s Counsel]: I can’t get it done in an hour, your

Honor. There’s way too much information. I want to lay in

the predicate, and everybody else becomes a half hour. You

know, that’s—

The Court: Okay.

[ACM’s Counsel]: I need to tell the story with him so the

jury gets the overall picture. Otherwise—and the rest of

these witnesses shouldn’t take long. [Emphasis added.]

The trial court did not enforce its one-hour ruling for

the examinations of Burrell. ACM’s counsel questioned

Burrell for approximately 4

hours. Burrell’s direct

examination and cross-examination extended for three

616 287 M

ICH

589 [Mar

days of trial, in part because the examinations were

interrupted for the testimony of another witness. The

parties agree that after Burrell’s testimony concluded,

the trial court limited the entire time for additional

witness examinations to 1.5 hours, 45 minutes for each

side.

During ACM’s counsel’s cross-examination of Warf-

ield, counsel inquired of the trial court about the time

remaining and the trial court responded, “Fifteen min-

utes.” When ACM’s counsel objected that “this is not

adequate considering the serious nature—,” the trial

court interjected, “I know, but we’re moving on. We’re

moving on. We’ve wasted a lot of time in this trial, and

the next witness is gonna be an hour. We’ll move quickly

through these witnesses.” Counsel for ACM again ob-

jected to the time limitation the next day. After citing

Hartland, the trial court responded, “I’ve been ap-

pealed on this issue many times, and I’ve always been

affirmed. I pick the amount of time for each witness.

Mr. Rentenbach will be an hour and a half witness. Mr.

Eaton will be an [sic] one hour witness, that’s half hour

[sic] for each side.”

Counsel for ACM apparently examined Rentenbach

for 45 minutes, and did not reserve any time for

recross-examination. At the conclusion of defense coun-

sel’s examination of Rentenbach, ACM’s counsel ob-

jected to the time limitation and asked if he could make

an offer of proof concerning “what I intend to prove

when I’m being precluded from having the opportunity

to make evidence in this case by the Court’s rulings.”

The trial court did not permit ACM’s counsel to de-

scribe the testimony and exhibits he intended to offer

through Rentenbach, responding, “One minute. We

can’t go through all that. We’ve got to go on back to the

next witness, okay?” The following exchange ensued:

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[ACM’s Counsel]: Your Honor, you’re not gonna let me

make a record?

The Court: No, no, because I’ve already made—we’ve

discussed this ad nauseum. You had 45 minutes, you have

45 minutes to ask whatever you wanted. You could have

saved five minutes to come back and ask about that

document about the billing.

We’re going on to the next witness.

[ACM’s Counsel]: Your Honor, case law is very clear, I

have the right to make a record.

The Court: You’ve made a record, I’ve made a ruling.

After trial concluded, ACM filed an “offer of proof” with

the court. This offer does not appear in the lower court

record. However, the parties have referred to it exten-

sively in their appellate briefs.

Under the specific circumstances presented here, the

trial court did not abuse its discretion by limiting to 1.5

hours the parties’ examinations of Rentenbach and

Warfield. The record reveals that counsel had adequate

time to develop the facts and issues at the center of the

parties’ dispute. Moreover, the trial court permitted

ACM more than three hours for its examination of

Burrell on the basis of counsel’s pledge that he could

complete the rest of the witness examinations in a half

hour.

With respect to the trial court’s offer of proof ruling,

MRE 103(a) provides, in relevant part, as follows:

We emphasize our disapproval of utterly arbitrary time limitations

unrelated to the nature and complexity of a case or the length of time

consumed by other witnesses. Here, however, because the trial court

selected a time limitation suggested by ACM’s counsel, the period

permitted did not qualify as arbitrary. And even if the time period

selected could be fairly characterized as arbitrary, by proposing a half-

hour for all witnesses other than Burrell, plaintiff’s counsel waived any

possible error.

618 287 M

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589 [Mar

Error may not be predicated upon a ruling which admits

or excludes evidence unless a substantial right the of the

party is affected, and

***

(2) Offer of proof. In case the ruling is one excluding

evidence, the substance of the evidence was made known to

the court by offer or was apparent from the context within

which questions were asked.

Because the trial court’s refusal to permit ACM to

make an offer of proof may have prevented ACM from

fully exercising its right to challenge on appeal the

trial court’s time limitations, the trial court abused

its discretion by ignoring or misapplying MRE

103(a)(2) and precluding ACM from presenting its

offer of proof in a manner permitted by the court

rules. The trial court’s need to complete witness

testimony, however urgent, does not absolve it from

its obligation to permit an offer of proof in accordance

with MRE 103(a)(2). Here, ACM later fully preserved

its claim of appeal by filing a separate offer of proof in

the trial court, rendering harmless the court’s ruling

transcribed above.

ACM avers that the limited examinations prevented

questioning of Rentenbach about several documents

that Alpha Partners filed with the Securities and Ex-

change Commission, deposition testimony inconsistent

with Rentenbach’s trial testimony, and Rentenbach’s

involvement in drafting the covenant not to compete

and a 2001 amendment to ACM’s articles of incorpora-

tion. But because ACM has not explained the impor-

tance of these areas of inquiry or the manner in which

their foreclosure prejudiced its case, we conclude that

ACM has failed to prove that the trial court’s time

limitation affected its substantial rights. MCR 2.613(A).

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IV. REFERENCES TO PRIOR LITIGATION

ACM avers that the trial court improperly allowed

defendants to repeatedly elicit testimony regarding the

settlement of the prior Oakland Circuit Court litigation,

in violation of MRE 408, and to make other prejudicial

references to the merits of the Oakland Circuit Court

litigation. “A trial court’s decision whether to admit or

exclude evidence will not be disturbed on appeal absent

an abuse of discretion. The trial court abuses its discre-

tion if its decision is outside the range of principled

outcomes.” Morales v State Farm Mut Auto Ins Co, 279

Mich App 720, 729; 761 NW2d 454 (2008) (citation

omitted). To the extent that this issue involves the

meaning of a Michigan Rule of Evidence, we consider

this legal issue de novo. Waknin, 467 Mich at 332.

ACM moved in limine to exclude at trial evidence or

references to “case evaluation settlements, judicial

opinions or rulings issued in... the Oakland County

Circuit Court.” ACM maintained that the settlement-

related references fell within the precluded category of

evidence in MRE 408 and that the settlement-related

remarks and other references to the Oakland Circuit

Court litigation had no relevance to this case. MRE 401.

The trial court denied ACM’s motion in limine, explain-

ing that “that other suit has [been] pled, so I believe it

can be brought out,” and that MRE 408 did not apply

because “[t]hat rule refers to settlements in this case,

not in another case[.]”

Pursuant to MRE 408:

Evidence of (1) furnishing or offering or promising to

furnish, or (2) accepting or offering or promising to accept,

a valuable consideration in compromising or attempting to

compromise a claim which was disputed as to either

validity or amount, is not admissible to prove liability for or

invalidity of the claim or its amount. Evidence of conduct

620 287 M

ICH

589 [Mar

or statements made in compromise negotiations is likewise

not admissible. This rule does not require the exclusion of

any evidence otherwise discoverable merely because it is

presented in the course of compromise negotiations. This

rule also does not require exclusion when the evidence is

offered for another purpose, such as proving bias or preju-

dice of a witness, negativing a contention of undue delay, or

proving an effort to obstruct a criminal investigation or

prosecution.

The rationale of this rule “is that settlement discus-

sions are best encouraged when parties can freely

discuss their dispute and offer to compromise their

litigation positions without fear that their settlement

discussions might be used against them as evidence of

the strength or weakness of their cases.” 1 Robinson &

Longhofer, Michigan Court Rules Practice, Evidence,

§ 408.1, p 587.

Here, defendants sought to introduce evidence re-

garding plaintiff’s resolution of its prior suit against

Alpha Partners, Warfield, Rodgers, and Edwards. Al-

though MRE 408 does not directly address the admis-

sibility of settlements with third parties, in Wind-

emuller Electric Co v Blodgett Mem Med Ctr, 130 Mich

App 17, 23; 343 NW2d 223 (1983), this Court held that

“under MRE 408, evidence of a settlement made by a

party to the present litigation with a third person is not

admissible to prove liability.” Accordingly, the trial

court incorrectly determined that MRE 408 lacks appli-

cability to settlements “in another case,” because the

rule plainly does not take into account a “prior action”

exception. However, the trial court correctly observed

that ACM first raised the topic of the prior litigation,

including the relief sought and the ultimate case evalu-

ation award, in eight detailed paragraphs of the com-

plaint in this case, including the following:

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44. On November 4, 2003, Alpha Capital and Burrell,

represented by Honigman Miller, filed a lawsuit (denomi-

nated herein as “Alpha Capital I”) in the Oakland County

Circuit Court, Case No. 03-053915-CK, naming Alpha

Partners, Warfield, Edwards and Rodgers as defendants.

The Complaint sought injunctive relief to preclude Alpha

Partners from providing services to Alpha Capital’s former

clients and included claims against the defendants for the

misappropriation of Alpha Capital’s confidential informa-

tion and clients, breach of fiduciary duties, tortious inter-

ference with advantageous business relations and unfair

competition.

45. The defendants in Alpha Capital I were represented

in the lawsuit by Defendants [Mark] Hauck and Dykema

Gossett....

***

48. The lawsuit proceeded to mediation on November

22, 2004. The mediators recommended an award in favor of

the plaintiffs in the amount of $70,000, and in favor of

Warfield on his counter-claim against Alpha Capital in the

amount of $10,000.

49. Honigman Miller had been billing Alpha Capital

and Burrell for legal representation in connection with the

lawsuit on an hourly basis of $390 per hour. As of December

14, 2004, Honigman Miller had billed the plaintiffs

$85,628.86, which exceeded the plaintiffs’ net mediation

award. During the months of November and December,

2004, alone, Honigman Miller billed Alpha Capital an

additional $93,606.10.

50. The expense of the litigation was depleting Alpha

Capital’s resources and had become unaffordable, with the

prospect of substantial additional legal fees yet to come.

Even though Burrell believed that the mediation award

was inadequate and did not reflect the plaintiffs’ actual

damages, he concluded that the plaintiffs could not afford

to continue the litigation and had no choice but to accept

the recommended mediation award. The defendants also

accepted the mediation award.

622 287 M

ICH

589 [Mar

ACM’s complaint further averred that defendants’

breaches of fiduciary duty “were a proximate cause of

Alpha Capital’s damages arising from Alpha Partner’s

theft of its business and of the litigation costs arising

therefrom.” In other words, ACM sought compensatory

damages for the amounts it had expended in the prior

lawsuit against Alpha Partners, Warfield, Rodgers, and

Edwards.

In conclusion, because ACM’s theory of the case

placed the Oakland Circuit Court settlement and its

attendant legal fees at issue in the instant case, the trial

court did not abuse its discretion by allowing defense

counsel to refer to the prior litigation on several occa-

sions. See Lewis v LeGrow, 258 Mich App 175, 210; 670

NW2d 675 (2003) (“It is settled that error requiring

reversal may only be predicated on the trial court’s

actions and not upon alleged error to which the ag-

grieved party contributed by plan or negligence.”). Id.

To the extent that defense counsel’s comments may

have violated the letter or the spirit of MRE 408, we

conclude that any error was harmless and does not

warrant a new trial. MCR 2.613(A).

V. EXPERT’S TESTIMONY AS TO MATTERS OF LAW

ACM also submits that contrary to law the trial court

allowed defense expert Borgsdorf to testify regarding

legal opinions, including about contract interpretation.

We again review for an abuse of discretion the trial

court’s decision whether to admit or exclude evidence.

Morales, 279 Mich App at 729.

Neither side challenged at trial the legal ethics ex-

pertise of Beckerman, ACM’s expert, or Borgsdorf,

defendants’ expert. A review of Beckerman’s and Borgs-

dorf’s testimony reveals that the experts did not dis-

agree with respect to the ethical standards guiding

2010] A

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lawyers’ behavior and conduct toward clients and

former clients, just that the experts disputed the extent

to which the relevant ethical principles applied to the

facts of this case. In conformity with MRE 702 and

MRE 703, the experts properly brought their special-

ized legal expertise to bear on the instant facts.

Concerning ACM’s position that the trial court im-

properly allowed Borgsdorf to render legal opinions

involving contract interpretation, ACM has waived ap-

pellate review of this assertion. In the course of Beck-

erman’s testimony, which ACM introduced before

Borgsdorf testified, ACM elicited over defendants’ ob-

jection Beckerman’s opinions about the interrelation-

ship between §§ 2.8 and 6.1 of the parties’ stock pur-

chase agreement. As noted above, “error requiring

reversal may only be predicated on the trial court’s

actions and not upon alleged error to which the ag-

grieved party contributed by plan or negligence.” Lewis,

258 Mich App at 210.

VI. JUROR DISMISSAL

According to ACM, notwithstanding that its counsel

observed the court reporter motion to a juror and

gesture “in a manner adverse to [ACM],” the trial court

inexcusably refused to investigate the full extent of the

improper communication or give the jury a curative

instruction. However, after reviewing the record, we

detect no substantiation by ACM that (1) the court

reporter engaged in misconduct, (2) the reporter en-

gaged in any conduct that affected the impartiality of a

juror, (3) the trial court should have granted ACM an

evidentiary hearing to further investigate any potential

misconduct, or (4) the trial court’s decision not to

investigate further can be characterized as “inconsis-

tent with substantial justice.” MCR 2.613(A).

624 287 M

ICH

589 [Mar

The entirety of the trial record devoted to ACM’s

counsel’s allegation of impropriety by the court reporter

consists of the following:

[ACM’s Counsel]: The Court will recall that the Court

gave me the ok to move around, and during the course of

the trial, the Court’s court reporter—

***

The problem, though, and this is what I want to address.

In the course of this, Mary [the court reporter] has become

very upset with me a number of times, made faces and

acted disdained, corrected me in an inappropriate way and

an unprofessional way, and... [defense counsel] had a

little of that also, and I understand that.

But, now what I’m concerned about, on Friday, as one of

the jurors was leaving, Mary waived [sic] to him and kind

of spoke to him a little bit, made some mouth movement,

and I—

The Court: I don’t recall that, and I was here.

[ACM’s Counsel]: Well, you didn’t see it. I saw it, and

I’m very concerned about the direct impact on this trial as

a result of that conduct. And, what I’m asking is that the

Court dismiss Juror No. 4 as a result of that, and if we need

to make a separate record on this, I want to do that.

The Court: Any comment?

[Defense Counsel]: I didn’t see it, your Honor, and I

haven’t seen any inappropriate conduct by the court re-

porter.

The Court: I was here and don’t recall seeing any [sic] of

that nature, so, that request is denied.

Even accepting ACM’s counsel’s perception that the

court reporter occasionally had “made faces and acted

disdained, corrected me in an inappropriate way,” we

perceive no potential substantial prejudice to ACM

arising from the court reporter’s conduct, especially in

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light of ACM’s counsel’s belief that the reporter had at

some points apparently done the same things toward

defense counsel. MCR 2.613(A). Regarding the report-

er’s perceived wave and mouth motion directed at a

juror, given that (1) neither the trial court nor defense

counsel detected the same behavior, and (2) ACM’s

counsel’s failed to suggest any manner in which the

reporter’s wave, even assuming it occurred, may have

threatened the juror’s fairness and impartiality, the

trial court did not abuse its discretion when it declined

to remove the juror. People v Unger, 278 Mich App 210,

259; 749 NW2d 272 (2008). Moreover, ACM presents no

authority on appeal in support of its contention that the

trial court should have investigated further the court

reporter and potential juror bias.

Hughes v Almena

Twp, 284 Mich App 50, 72; 771 NW2d 453 (2009)

(noting that “[t]he failure to cite sufficient authority

results in the abandonment of an issue on appeal”).

VII. JURY INSTRUCTIONS

Lastly, ACM submits that the trial court erred in

multiple respects by rejecting several of its proposed

jury instructions. We review de novo properly preserved

instructional errors, Cox v Flint Bd of Hosp Managers,

467 Mich 1, 8; 651 NW2d 356 (2002), and consider the

jury instructions as a whole to determine whether they

ACM cites only People v Johnson, 46 Mich App 212, 217; 207 NW2d

914 (1973), in which this Court rejected the defendant’s complaint that

“a detective’s silent laughter during the cross-examination of a defense

witness denied him a fair trial.” Although the parties in Johnson agreed

that a detective had a bout of silent laughter during a witness’s

cross-examination, the trial court “found no prejudice resulting from this

conduct and denied [the] defendant’s motion for mistrial.” Id. This Court

affirmed, observing that the defendant had demonstrated no prejudice,

and saying nothing about the trial court’s responsibility to conduct an

evidentiary hearing. Id.

626 287 M

ICH

589 [Mar

adequately present the theories of the parties and the

applicable law. Mull v Equitable Life Assurance Society

of the United States, 196 Mich App 411, 423; 493 NW2d

447 (1992), aff’d 444 Mich 508 (1994). “[A] verdict

should not be set aside unless failure to do so would be

inconsistent with substantial justice. Reversal is not

warranted when an instructional error does not affect

the outcome of the trial.” Jimkoski v Shupe, 282 Mich

App 1, 9; 763 NW2d 1 (2008).

After reviewing the record, we find that although

somewhat incomplete and imperfect, the trial court’s

instructions fairly and accurately presented the theo-

ries of the parties and the applicable law. Any minor

omissions or other deficiencies did not substantially

prejudice ACM’s case. MCR 2.613(A).

A. COUNT I: BREACH OF FIDUCIARY DUTY

The trial court instructed the jury as follows regard-

ing ACM’s breach of fiduciary duty claim:

In this lawsuit, Plaintiff has three claims against the

Defendants. In the first claim, Plaintiff maintains that the

Defendants breached their fiduciary duty to Alpha Capital

Management as a former client.

Plaintiff has the burden of proof on this claim and must

prove that (1) Defendants at some time had an

attorney/client relationship with Alpha Capital Manage-

ment; (2) Defendants violated their fiduciary duty arising

out of the attorney/client relationship with their former

client Alpha Capital Management; and (3) that the breach

of fiduciary duty by the Defendant was a proximate cause

of injury or harm to Alpha Capital Management.

An attorney’s breach of fiduciary duty to a former client

is a proximate cause of the former client’s injury or harm if

the attorney’s breach of fiduciary duty was a substantial

factor in causing that injury or harm.

2010] A

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Your verdict will be for the Plaintiff if you find that

Plaintiff has proved all of these elements.

Your verdict will be for the Defendant if you find that

Plaintiff has failed to prove any of these elements.

ACM requested the following additional instructions:

Plaintiff’s Special Instruction—Attorney’s Fiduciary

Duty

An attorney has a fiduciary duty to his client. This

means that he must conduct himself in a spirit of loyalty to

his client, assuming a position of the highest trust and

confidence. The attorney’s fiduciary duty to the client does

not end after the attorney-client relationship has termi-

nated. The attorney’s fiduciary duty continues to apply to

a former client and encompasses two main aspects: (1) a

continuing duty of loyalty to the former client and also, (2)

a duty not to use confidential information that the attorney

obtained during the representation of the former client to

the disadvantage of the former client.

Plaintiff’s Special Instruction—Breach of Fiduciary

Duty by Attorney With Respect to Former Client.

An attorney breaches his fiduciary duty to a former

client if he provides legal representation or legal advice to

a new client with respect to matters which are the same as,

or substantially related to, matters with respect to which

the attorney provided legal representation or legal advice

to the former client, the interests of the new client with

respect to the matters in question are materially adverse to

the interests of the former client, and the attorney has not

requested and obtained the permission of the former client

to represent the new client with respect to the matters in

question.

Plaintiff’s Special Instruction—Substantially Related

Matters.

The legal matters involved in an attorney’s representa-

tion of two different clients are “substantially related” if

the factual contexts of the two representations are similar

or related, or if the attorney may have obtained confiden-

628 287 M

ICH

589 [Mar

tial information during the legal representation of the first

client that could be relevant or useful with respect to his

legal representation of the current client.

Plaintiff’s Special Instruction—Billing of Attorney’s

Services

In determining when the attorney-client relationship

between the Plaintiff, Alpha Capital Management, and

the Defendants, Paul Rentenbach and Dykema Gossett,

ended—you are instructed that an attorney’s act of

sending a bill constitutes an acknowledgment that the

attorney was performing legal services for the client.

“Generally, a trial court may give an instruction not

covered by the standard instructions as long as the

instruction accurately states the law and is understand-

able, concise, conversational, and nonargumentative.”

Central Cartage Co v Fewless, 232 Mich App 517, 528;

591 NW2d 422 (1998); see also MCR 2.516(D)(4). But a

trial court need not give a supplemental instruction if

doing so would not “enhance the ability of the jury to

decide the case intelligently, fairly, and impartially.”

Central Cartage, 232 Mich App at 528. Even if a

requested supplemental instruction accurately states

the law, a trial court does not abuse its discretion in

rejecting it if the supplemental instruction adds nothing

to an otherwise balanced and fair jury charge. Beadle v

Allis, 165 Mich App 516, 527; 418 NW2d 906 (1987).

With the exception of the instruction regarding “Sub-

stantially Related Matters,” ACM’s proposed jury in-

structions accurately state the law relating to an attor-

ney’s fiduciary duty and the circumstances under which

it may be breached. However, neither the existence of a

fiduciary duty nor the last date that defendants per-

formed legal services was the subject of dispute at trial.

The experts for both sides testified extensively that

attorneys owe their current and former clients a fidu-

ciary duty, and that the duty prohibits the use of

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629

confidential information obtained from one client in a

manner adverse to another. The experts spent consid-

erable time discussing whether Rentenbach’s represen-

tation of ACM qualified as “substantially related” to the

legal work he performed for Alpha Partners. And the

parties agreed that defendants continued to provide

legal services to ACM until Burrell terminated the

attorney-client relationship in 2001. Because the par-

ties never disputed the legal principles described in

ACM’s requested supplemental jury instructions, the

instructions would not have enhanced the jury’s ability

to intelligently and fairly decide the case. Accordingly,

the trial court did not abuse its discretion by refusing to

read ACM’s proposed supplemental fiduciary duty in-

structions.

B. MRPC INSTRUCTION

The trial court instructed the jury as follows with

regard to Michigan’s Rules of Professional Conduct:

You have heard...some testimony regarding the Michi-

gan Rules of Professional Conduct, or “MRPC.” When

deciding whether Defendants are liable for the claims in

this lawsuit, you must keep in mind that a violation of the

Michigan Rules of Professional Conduct do not create the

basis for a claim, nor does it create any presumption that a

legal duty has been breached. The Michigan Rules of

Professional Conduct are not designed to be a basis for civil

liability.

This instruction applies to the facts of the case and

accurately states the law. ACM correctly observes that

“to the extent that any valid common law claim may

happen to find a corollary” in the MRPC, the rules of

professional conduct do not eliminate or render invalid

a fiduciary duty claim. But we do not view the instruc-

tion given as objectionable simply because it neglected

630 287 M

ICH

589 [Mar

to include this additional qualification. “Even if some-

what imperfect, instructions do not create error requir-

ing reversal if, on balance, the theories of the parties

and the applicable law are adequately and fairly pre-

sented to the jury.” Case v Consumers Power Co, 463

Mich 1, 6; 615 NW2d 17 (2000). The trial court’s

reading of its MRPC instruction cannot be character-

ized as inconsistent with substantial justice.

C. AIDING AND ABETTING INSTRUCTIONS

Count II of ACM’s complaint alleged that defendants

aided and abetted Warfield’s, Edwards’s, and Rodgers’s

breaches of their fiduciary duties to ACM, and that

Rentenbach’s actions made him “a joint tortfeasor with

Warfield, Edwards and Rodgers.” The trial court in-

structed the jury as follows regarding this claim:

As part of Plaintiff’s second claim against the Defen-

dants, Plaintiff also claims that Defendant[s] aided and

abetted Warfield, Rogers [sic], and/or Edwards, who inten-

tionally and improperly interfered with Plaintiff’s business

relationship and expectancy with existing and potential

clients of Alpha Capital Management, in breach of their

fiduciary duties to the company. In order to establish the

underlying wrong, Plaintiff has the burden of proving each

of the following:

1. Plaintiff had a business relationship or expectancy

with existing clients at the time of the claimed interfer-

ence.

2. The business relationships or expectancies had a

reasonable likelihood of future economic benefit for Plain-

tiff;

3. Warfield, Rogers [sic], and/or Edwards knew of the

business relationship or expectancy at the time of the

claims interference.

4. Warfield, Rogers [sic], and/or Edwards intentionally

interfered with the business relationship or expectancy.

2010] A

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5. The conduct of Warfield, Rogers [sic], and/or Ed-

wards caused clients of the Plaintiff to terminate the

business relationship or to disrupt the expectancy.

6. Plaintiff was damaged as a result of the conduct of

Warfield, Rogers [sic], and/or Edwards.

Your verdict will be for the Plaintiff if you find that

Plaintiff has proved all of these elements and has also

proved that Defendant Rentenbach gave substantial assis-

tance to Warfield, Rogers [sic], and/or Edwards in effecting

the tortuous [sic] interference and either (1) knew that

either Warfield, Rogers [sic], and/or Edwards were engag-

ing in the wrong or (2) Rentenbach’s own conduct, sepa-

rately considered, constituted a breach of duty to Plaintiff.

ACM contends that the trial court should have sup-

plied additional instructions describing in detail the

nature of the fiduciary relationships between ACM and

Warfield, Rodgers, and Edwards. However, ACM’s

lengthy proposed supplemental instructions are neither

concise nor conversational. Moreover, even if they quali-

fied as proper supplemental instructions, the trial

court’s failure to read them was harmless given the

jury’s finding that Warfield, Rodgers, and Edwards

tortiously interfered with ACM’s contractual and busi-

ness relationships.

D. DEFENDANTS’ CONDUCT BEFORE SEPTEMBER 2003

In the instructions concerning counts II and III of

ACM’s complaint, the trial court limited the jury’s

consideration of the facts to the time period “during or

after September, 2003.” Although ACM correctly as-

serts that the evidence demonstrated that Rentenbach

had conferred with Warfield, Rodgers, and Edwards in

August 2003, ACM averred in at least one trial court

filing that “Defendants’ actions upon which the breach

of fiduciary duty claim is based began in September,

2003....”“Aparty may not take a position in the trial

632 287 M

ICH

589 [Mar

court and subsequently seek redress in an appellate

court that is based on a position contrary to that taken

in the trial court.” Czymbor’s Timber, Inc v Saginaw,

269 Mich App 551, 556; 711 NW2d 442 (2006) (quota-

tion marks and citations omitted), aff’d 478 Mich 348

(2007).

E. COUNT III: AIDING AND ABETTING

WARFIELD’S VIOLATION OF THE COVENANT NOT TO COMPETE

ACM insists that the trial court erred by failing to

instruct the jury about alternative performance con-

tracts and other “basic legal principles of contract

interpretation.” However, because Burrell’s breach of

the stock purchase agreement precluded his enforce-

ment of the covenant not to compete, as discussed supra

at 610-615, ACM’s argument on this ground lacks

merit.

F. INTERVENING CONDUCT OF NONPARTIES AND SETTLEMENT

ACM further suggests that the trial court committed

error requiring reversal when it “failed to give...

requested instructions regarding the legal effect of any

intervening conduct of persons not a party to the action,

and...regarding the jury’s consideration of evidence of

a settlement.” In 2003, the Committee on Model Civil

Jury Instructions deleted M Civ JI 15.05, an instruction

addressing the intervening conduct of a person not a

party to the action. The committee explained, “The

instruction was deleted because the effect of nonparty

fault is addressed in M Civ JI 15.03....”ACMdidnot

request that the trial court give M Civ JI 15.03. Accord-

ingly, the trial court committed no error substantially

prejudicing ACM to the extent that it neglected to read

the jury an intervening conduct instruction.

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ACM urged the trial court to instruct the jury that it

“must not consider the fact that there was a settlement

in the prior case as having any bearing” on the jury’s

determination of ACM’s claims in the instant case.

Although this proposed instruction accurately stated

the law, the trial court’s refusal to give it was not

inconsistent with substantial justice. ACM presented

abundant evidence about the Oakland Circuit Court

litigation, but virtually no information regarding the

small settlement achieved. After reviewing the trial

court’s instructions as a whole in light of the evidence

introduced at trial, we simply cannot conclude that the

trial court’s refusal to give a supplemental settlement

instruction substantially prejudiced ACM.

G. ACM’S THEORY OF THE CASE

The trial court refused to read the case theories

submitted by the parties. According to MCR

2.516(A)(5), “The court need not give the statements of

issues or theories of the case in the form submitted if

the court presents to the jury the material substance of

the issues and theories of each party.” The trial court

did not abuse its discretion by refusing to read ACM’s

lengthy and argumentative case theory because the

balance of the instructions adequately explained the

material substance of the disputed issues in this case.

Furthermore, the parties aggressively advocated their

theories of the case during their closing arguments.

Affirmed.

634 287 M

ICH

589 [Mar

DYBATA v WAYNE COUNTY

Docket Nos. 283413 and 283414. Submitted October 7, 2009, at Detroit.

Decided March 25, 2010, at 9:00 a.m.

Tina and Ryan Dybata and other residents of the city of Dearborn

Heights brought an action in the 20th District Court, Mark J.

Plawecki, J., against Wayne County and the city, seeking damages

that resulted when sewage backed up into their homes following a

significant rainfall. The district court denied the county’s motion

for summary disposition on the basis that the plaintiffs had

provided the required statutory notice of their claims to the city,

which in turn was required to notify the county, and the notice to

the city was sufficient to allow plaintiffs’ claims to proceed against

the county. The county and the city appealed separately in the

Wayne Circuit Court and the appeals were consolidated. The

circuit court, Prentis Edwards, J., agreed with the district court

and affirmed its decision to deny the county’s motion for summary

disposition. The Court of Appeals granted two separate applica-

tions for leave to appeal by the county and consolidated the

appeals.

The Court of Appeals held:

1. Notice of an “event” together with a list of the affected

households does not constitute written notice of a “claim” for

purposes of MCL 691.1419(1).

2. MCL 691.1419(2) controls under the facts of this case and is

dispositive of the parties’ arguments. This section provides that if

a person who owns or occupies affected property notifies a con-

tacting agency orally or in writing of an event before providing

notice of a claim that complies with MCL 691.1419(1), the contact-

ing agency shall provide the person with written information

concerning where and how to file a claim. Here, the county was

sufficiently notified of an event before the affected individuals

provided a notice of a claim that complies with MCL 691.1419(1).

Therefore, the county’s receipt of the list of affected properties

from the city was sufficient to trigger the county’s obligation

under MCL 691.1419(2) to provide information to the affected

households and property owners concerning where and how to file

a claim. Despite receiving the list, the county’s contacting agency

2010] D

YBATA V

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635

never provided the affected individuals any written information

concerning where and how to file a claim.

3. Plaintiffs made the necessary showing required by MCL

691.1419(3)(a) and (b), namely, that the county received timely

notice of an event as envisioned by MCL 691.1419(2), that the

county failed to provide plaintiffs information concerning where

and how to file a claim, and that plaintiffs’ failure to file a notice

of their claims under MCL 691.1419(1) was caused by the county’s

failure to provide the information required by MCL 691.1419(2).

Therefore, plaintiffs’ failure to comply with the notice require-

ments of MCL 691.1419(1) did not bar plaintiffs from bringing a

civil action under MCL 691.1417 against the county. The district

court and the circuit court reached the correct result, although for

the wrong reason.

Affirmed.

RAINS —

EWAGE

ISPOSAL

YSTEM

VENTS —

OTICE —

LAIMS

An appropriate governmental agency’s receipt of notice of a sewage

disposal system event together with a list of the households

affected by the event from a person who owns or occupies the

affected property does not constitute written notice of a “claim”

regarding the event for purposes of providing notice of a claim that

complies with MCL 691.1419(1) (MCL 691.1416[b]).

Ball & Ball, LLP (by Bettie K. Ball), for Tina and

Ryan Dybata and others.

Wayne County Corporation Counsel (by Edward M.

Thomas and Ronald P. Weitzman) and Bodman LLP (by

R. Craig Hupp and Thomas P. Bruetsch) for Wayne

County.

Before: K. F. K

ELLY

,P.J., and J

ANSEN

and F

ITZGERALD

JJ.

ANSEN

, J. In these consolidated appeals, defendant

Wayne County (the county) appeals by leave granted

the circuit court’s order affirming the district court’s

denial of its motion for summary disposition brought

pursuant to MCR 2.116(C)(7) (governmental immu-

nity). We affirm for the reasons set forth in this opinion.

636 287 M

ICH

635 [Mar

Plaintiffs are residents of the city of Dearborn

Heights (the city). Plaintiffs sued the city and the

county to recover damages that resulted when sewage

backed up into their homes following a significant

rainfall. The issue presented in this appeal is whether

the county was entitled to summary disposition on the

ground that plaintiffs had failed to comply with certain

statutory notice requirements contained in the govern-

mental tort liability act (GTLA), MCL 691.1401 et seq.

Both the district and circuit courts concluded that

plaintiffs had provided the required statutory notice of

their claims to the city, which in turn was required to

notify the county of those claims pursuant to MCL

691.1419(4). Both courts concluded that plaintiffs’ no-

tice to the city was sufficient to allow their claims to

proceed against the county, and that the county was

therefore not entitled to summary disposition on the

issue of notice. Although we disagree with the exact

reasoning of the district and circuit courts, we conclude

that the correct result was reached in denying the

county’s motion for summary disposition.

Summary disposition may be granted when, among

other things, a claim is barred by governmental immu-

nity. MCR 2.116(C)(7). When considering a motion

brought under subrule C(7), the trial court must con-

sider any affidavits, depositions, admissions, or other

documentary evidence submitted by the parties to de-

termine whether there is a genuine issue of material

fact precluding summary disposition. MCR 2.116(G)(5);

Guerra v Garratt, 222 Mich App 285, 289; 564 NW2d

121 (1997). If no facts are in dispute, or if reasonable

minds could not differ regarding the legal effect of those

facts, then the question whether the claim is barred by

governmental immunity is an issue of law. See id.

However, if a question of fact exists to the extent that

2010] D

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637

factual development could provide a basis for recovery,

dismissal is inappropriate. Id.

A trial court’s decision on a motion for summary

disposition is reviewed de novo. Maiden v Rozwood, 461

Mich 109, 118; 597 NW2d 817 (1999). “We review the

record in the same manner as the trial court to determine

whether the movant was entitled to judgment as a matter

of law.” Herman v Detroit, 261 Mich App 141, 143; 680

NW2d 71 (2004). We review de novo questions of statutory

interpretation, as well as the application of governmental

immunity. Id.; Heinz v Chicago Rd Investment Co, 216

Mich App 289, 295; 549 NW2d 47 (1996).

The GTLA provides various exceptions to the doc-

trine of governmental immunity. One of those excep-

tions, contained in § 17 of the GTLA, MCL 691.1417,

allows individuals to sue for damages resulting from a

“sewage disposal system event.”

MCL 691.1417 pro-

vides:

(1) To afford property owners, individuals, and govern-

mental agencies greater efficiency, certainty, and consis-

tency in the provision of relief for damages or physical

injuries caused by a sewage disposal system event, a

MCL 691.1416(k) defines the terms “[s]ewage disposal system event”

and “event” as

the overflow or backup of a sewage disposal system onto real

property. An overflow or backup is not a sewage disposal system

event if any of the following was a substantial proximate cause of

the overflow or backup:

(i) An obstruction in a service lead that was not caused by a

governmental agency.

(ii) A connection to the sewage disposal system on the affected

property, including, but not limited to, a sump system, building

drain, surface drain, gutter, or downspout.

(iii) An act of war, whether the war is declared or undeclared,

or an act of terrorism.

638 287 M

ICH

635 [Mar

claimant and a governmental agency subject to a claim

shall comply with this section and the procedures in

sections 18 and 19.

(2) A governmental agency is immune from tort liability

for the overflow or backup of a sewage disposal system

unless the overflow or backup is a sewage disposal system

event and the governmental agency is an appropriate

governmental agency.

[

]

Sections 16 to 19 abrogate com-

mon law exceptions, if any, to immunity for the overflow or

backup of a sewage disposal system and provide the sole

remedy for obtaining any form of relief for damages or

physical injuries caused by a sewage disposal system event

regardless of the legal theory.

(3) If a claimant, including a claimant seeking noneco-

nomic damages, believes that an event caused property

damage or physical injury, the claimant may seek compen-

sation for the property damage or physical injury from a

governmental agency if the claimant shows that all of the

following existed at the time of the event:

(a) The governmental agency was an appropriate gov-

ernmental agency.

(b) The sewage disposal system had a defect.

reasonable diligence should have known, about the defect.

(d) The governmental agency, having the legal authority

to do so, failed to take reasonable steps in a reasonable

amount of time to repair, correct, or remedy the defect.

(e) The defect was a substantial proximate cause of the

event and the property damage or physical injury.

(4) In addition to the requirements of subsection (3), to

obtain compensation for property damage or physical in-

jury from a governmental agency, a claimant must show

both of the following:

MCL 691.1416(b) defines “[a]ppropriate governmental agency” as “a

governmental agency that, at the time of a sewage disposal system event,

owned or operated, or directly or indirectly discharged into, the portion of

the sewage disposal system that allegedly caused damage or physical injury.”

2010] D

YBATA V

AYNE

639

(a) If any of the damaged property is personal property,

reasonable proof of ownership and the value of the dam-

aged personal property. Reasonable proof may include

testimony or records documenting the ownership, purchase

price, or value of the property, or photographic or similar

evidence showing the value of the property.

(b) The claimant complied with section 19.

Section 19 of the GTLA, MCL 691.1419, provides, in

pertinent part:

(1) Except as provided in subsections (3) and (7), a

claimant is not entitled to compensation under section 17

unless the claimant notifies the governmental agency of a

claim of damage or physical injury, in writing, within 45

days after the date the damage or physical injury was

discovered, or in the exercise of reasonable diligence should

have been discovered. The written notice under this sub-

section shall contain the content required by subsection

(2)(c) and shall be sent to the individual within the govern-

mental agency designated in subsection (2)(b). To facilitate

compliance with this section, a governmental agency own-

ing or operating a sewage disposal system shall make

available public information about the provision of notice

under this section.

(2) If a person who owns or occupies affected property

notifies a contacting agency

[

]

orally or in writing of an

MCL 691.1416(d) provides that a

“[c]ontacting agency” means any of the following within a govern-

mental agency:

(i) The clerk of the governmental agency.

(ii) If the governmental agency has no clerk, an individual who

may lawfully be served with civil process directed against the

governmental agency.

(iii) Any other individual, agency, authority, department, dis-

trict, or office authorized by the governmental agency to receive

notice under section 19, including, but not limited to, an agency,

authority, department, district, or office responsible for the opera-

640 287 M

ICH

635 [Mar

event before providing a notice of a claim that complies

with subsection (1), the contacting agency shall provide the

person with all of the following information in writing:

(a) A sufficiently detailed explanation of the notice

requirements of subsection (1) to allow a claimant to

comply with the requirements.

(b) The name and address of the individual within the

governmental agency to whom a claimant must send writ-

ten notice under subsection (1).

subsection (1), which is limited to the claimant’s name,

address, and telephone number, the address of the affected

property, the date of discovery of any property damages or

physical injuries, and a brief description of the claim.

(3) A claimant’s failure to comply with the notice

requirements of subsection (1) does not bar the claimant

from bringing a civil action under section 17 against a

governmental agency notified under subsection (2) if the

claimant can show both of the following:

(a) The claimant notified the contacting agency under

subsection (2) during the period for giving notice under

subsection (1).

(b) The claimant’s failure to comply with the notice

requirements of subsection (1) resulted from the contact-

ing agency’s failure to comply with subsection (2).

(4) If a governmental agency that is notified of a claim

under subsection (1) believes that a different or additional

governmental agency may be responsible for the claimed

property damages or physical injuries, the governmental

agency shall notify the contacting agency of each additional

or different governmental agency of that fact, in writing,

within 15 business days after the date the governmental

agency receives the claimant’s notice under subsection (1).

This subsection is intended to allow a different or addi-

tional governmental agency to inspect a claimant’s prop-

erty or investigate a claimant’s physical injury before

tion of the sewage disposal system, such as a sewer department,

water department, or department of public works.

2010] D

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641

litigation. Failure by a governmental agency to provide

notice under this subsection to a different or additional

governmental agency does not bar a civil action by the

governmental agency against the different or additional

governmental agency.

(5) If a governmental agency receives a notice from a

claimant or a different or additional governmental agency

that complies with this section, the governmental agency

receiving notice may inspect the damaged property or

investigate the physical injury. A claimant or the owner or

occupant of affected property shall not unreasonably refuse

to allow a governmental agency subject to a claim to inspect

damaged property or investigate a physical injury. This

subsection does not prohibit a governmental agency from

subsequently inspecting damaged property or investigating

a physical injury during a civil action brought under

section 17.

When interpreting a statute, our primary goal is to

give effect to the intent of the Legislature. Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 202; 731

NW2d 41 (2007). When the language of a statute is clear

and unambiguous, the statute must be enforced as

written. Id. But a statute may be ambiguous if it

irreconcilably conflicts with another provision “or when

it is equally susceptible to more than a single meaning.”

Lansing Mayor v Pub Serv Comm, 470 Mich 154, 166;

680 NW2d 840 (2004) (emphasis in original). In con-

struing such a statute, we must always use common

sense to effectuate the Legislature’s purpose and to

avoid unreasonable consequences. Marquis v Hartford

Accident & Indemnity (After Remand), 444 Mich 638,

644; 513 NW2d 799 (1994); In re RFF, 242 Mich App

188, 198; 617 NW2d 745 (2000).

In the present case, it is undisputed that none of the

plaintiffs provided the county with written notice of

their claims pursuant to MCL 691.1419(1). The county

argues that, under § 19(1), the mere giving of notice

642 287 M

ICH

635 [Mar

that an event occurred and a list of affected house-

holds is insufficient to constitute notice that a spe-

cific individual actually intends to file a claim.In

response, plaintiffs contend that the county failed to

comply with the public information provision con-

tained in the final sentence of § 19(1), which requires

that “[t]o facilitate compliance with this section, a

governmental agency owning or operating a sewage

disposal system shall make available public informa-

tion about the provision of notice under this section.”

But plaintiffs have failed to submit any evidence with

regard to the applicability of this public information

requirement. Moreover, we note that in contrast to

§§ 19(2) and (3), § 19(1) is silent concerning the effect

of an agency’s failure to comply. Thus, even assuming

that plaintiffs are correct that the county did not

provide the public information envisioned by this

provision, it does not necessarily follow that plaintiffs

were relieved of the requirement to provide written

notice of their claims under § 19(1).

Plaintiffs also contend that § 19(1) should have been

deemed satisfied in these cases because the county

received notice that an event occurred, and was pro-

vided with a list of names, addresses, and telephone

numbers of the affected households. However, the plain

language of § 19(1) requires written notice of a claim,

and not merely notice of an event with a list of affected

households. We must agree with the county that notice

of an event, together with a list of affected households,

does not constitute written notice of a claim for pur-

poses of § 19(1). See Nuculovic v Hill, 287 Mich App 58,

69-70; 783 NW2d 124 (2010) (holding that notice of an

“occurrence” was not sufficient to comply with an

unrelated statutory provision requiring written notice

of a “claim”).

2010] D

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643

Nevertheless, we conclude that the county was not

entitled to summary disposition on the issue of notice.

While the parties, the district court, and the circuit

court focused their analyses on MCL 691.1419(4), we

believe that MCL 691.1419(2) controls in this situation

and is dispositive of the parties’ arguments here.

Section 19(2) provides that “[i]f a person who owns

or occupies affected property notifies a contacting

agency orally or in writing of an event before providing

a notice of a claim that complies with subsection (1), the

contacting agency shall provide the person with” writ-

ten information concerning where and how to file a

claim. MCL 691.1419(2) (emphasis added). Plaintiffs

provided evidence that John Baratta and Steve Kali-

nowski, both identified as county representatives, at-

tended a meeting on May 24, 2004, where they dis-

cussed the “event” with representatives of the affected

communities, including the city. The parties do not

address whether Kalinowski or Baratta can be consid-

ered a “contacting agency” within the meaning of MCL

691.1416(d) (a county clerk, an individual authorized to

accept process, or “[a]ny other individual, agency, au-

thority, department, district, or office authorized by the

governmental agency to receive notice under section 19,

including, but not limited to, an agency, authority,

department, district, or office responsible for the opera-

tion of the sewage disposal system, such as a sewer

department, water department, or department of public

works”). But in any event, Baratta also attended a

meeting on May 27, 2004, where he “requested that the

Downriver Communities forward address information

on properties that experienced basement flooding dur-

ing the storm events which began on May 21st.” It is

undisputed that the city was one of the affected com-

munities and responded to Baratta’s request by sending

the county a list of names, addresses, and telephone

644 287 M

ICH

635 [Mar

numbers of many affected homeowners, including all

plaintiffs except Diane McBride.

We acknowledge that although § 19(2) contemplates

that “a person who owns or occupies affected property”

will provide notice of the event, the list provided to the

county in these cases was actually received from the city

rather than the individual property owners.

However,

it is evident that the information contained in the

list—i.e., the names, addresses, and telephone numbers

of the affected individuals—originally came from the

persons who owned or occupied the affected properties,

and was merely compiled and transmitted to the county

by the city. Accordingly, we conclude that the county

was sufficiently “notifie[d]...orally or in writing of an

event before [the affected individuals] provid[ed] a no-

tice of a claim that complies with subsection (1)....”

MCL 691.1419(2) (emphasis added). Therefore, we fur-

ther conclude that the county’s receipt of the list from

the city was sufficient to trigger its obligation under

McBride submitted an affidavit stating that she had contacted the city

and that her name was included on the city’s list of persons who had

called. Therefore, it appears that McBride’s name should have been on

the list of affected households provided by the city to the county.

Nevertheless, McBride’s name does not appear on the list provided by the

city to the county. We find that there is a factual question regarding the

omission of McBride’s name from this list (e.g., whether McBride never

contacted the city in the first instance, whether she called the city but her

name was omitted inadvertently from the list forwarded to the county,

whether a page is missing, or whether the list was prepared and

forwarded to the county before McBride called the city). If McBride can

establish that the county received notice that she was among the affected

property owners, her claim should be entitled to proceed with the claims

of the remaining plaintiffs. However, if McBride is unable to satisfy

§ 19(2), her claim against the county will be barred by governmental

immunity.

The county concedes that it produced the list during discovery, but

claims that it did not know what the list meant or where it came from.

This argument simply raises a question of fact to be resolved below.

2010] D

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645

§ 19(2) to provide information to the affected house-

holds and property owners concerning where and how

to file a claim.

Despite receiving the list, which constituted notice of

an event sufficient to trigger its obligation under

§ 19(2), it is undisputed that the county’s “contacting

agency” never provided the affected individuals with

any written information concerning where and how to

file a claim as required by § 19(2). Section 19(3) pro-

vides that “[a] claimant’s failure to comply with the

notice requirements of subsection (1) does not bar the

claimant from bringing a civil action” if the claimant

has provided notice to the contacting agency under

subsection (2) and “[t]he claimant’s failure to comply

with the notice requirements of subsection (1) resulted

from the contacting agency’s failure to comply with

subsection (2).” MCL 691.1419(3)(a) and (b). Plaintiffs

have specifically alleged that they would have filed

notices of their claims with the county under § 19(1) if

they had known of the requirement to do so, and that

the reason they did not file notices of their claims with

the county was that they were never provided with

information concerning where and how to file a claim,

contrary to § 19(2).

Accepting these allegations as true, as we must,

Guerra, 222 Mich App at 289, we conclude that plain-

tiffs have made the necessary showing required by

§§ 19(3)(a) and (b)—namely, that the county received

timely notice of an event that affected plaintiffs’ prop-

erties as envisioned by § 19(2), that the county failed to

provide plaintiffs any information concerning where

and how to file a claim as required by § 19(2), and that

plaintiffs’ failure to file a notice of their claims under

§ 19(1) was caused by the county’s failure to provide the

information required by § 19(2). Accordingly, plaintiffs’

646 287 M

ICH

635 [Mar

“failure to comply with the notice requirements of

subsection (1) d[id] not bar [plaintiffs] from bringing a

civil action under section 17 against [the county]....”

MCL 691.1419(3) (emphasis added).

In sum, the present claims are not barred by plain-

tiffs’ failure to provide written notice of their claims

directly to the county under § 19(1). See MCL

691.1419(3). The district court reached the correct

result when it denied the county’s motion for summary

disposition, and the circuit court reached the correct

result when it affirmed the district court’s ruling. It is

axiomatic that we will not reverse when the lower

courts have reached the correct result, even when they

have done so for the wrong reason. See, e.g., Netter v

Bowman, 272 Mich App 289, 308; 725 NW2d 353

(2006); Taylor v Laban, 241 Mich App 449, 458; 616

NW2d 229 (2000).

In light of our conclusions, we need not address

whether plaintiffs’ notice to the city was also sufficient

to satisfy the requirement of notice to the county under

the language of § 19(4).

Affirmed. No taxable costs pursuant to MCR 7.219, a

public question having been involved.

2010] D

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647

PEOPLE v MALONE

Docket No. 286958. Submitted January 5, 2010, at Detroit. Decided

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

Patricia A. Malone was convicted by a jury in the Wayne Circuit

Court, Carole F. Youngblood, J., of three counts of stealing or

retaining a financial transaction device without consent, MCL

750.157n(1). Defendant appealed.

The Court of Appeals held:

1. MCL 750.157m(f)(v) does not require actual physical posses-

sion of identification numbers that can be used to access a

proprietary account, and an attempt to access a proprietary

account need not occur. Rather, stealing or retaining a record or

copy of information that can be used to obtain access to money,

credit accounts, or anything of value is sufficient. Therefore,

defendant’s decision to copy and retain the driver’s license num-

bers, social security numbers, and bank account numbers of fellow

employees on “post-it” notes without the authorization of the

employees was conduct prohibited by the statute. The statute does

not require an actual attempt to gain access to the accounts by the

possessor of the copy of the proprietary information. Defendant’s

challenge to the sufficiency of the evidence to support the convic-

tions is without merit because, although defendant testified that

she gathered the information in the course of her employment and

innocently took the information home, the jury rejected the

credibility of those assertions.

2. Defendant’s challenge to the constitutionality of MCL

750.157n(1) is without merit. A defendant may not challenge a

statute as unconstitutionally vague when, as in this case, the

defendant’s own conduct is fairly within the constitutional scope of

the statute. The fact that a hypothetical may be posed that would

cast doubt upon the statute does not render it unconstitutionally

vague.

3. Defendant’s claim that she was wrongfully convicted be-

cause the action was tried in Wayne County but the evidence was

recovered in Oakland County is without merit. Although the

evidence was recovered in Oakland County, it was taken in the

course of defendant’s employment in Wayne County. Whenever a

648 287 M

ICH

648 [Mar

felony consists or is the culmination of two or more acts done in

the perpetration thereof, the felony may be prosecuted in any

county in which any one of said acts was committed. MCL 762.8.

4. Evidence of other criminal acts is admissible when it ex-

plains the circumstances of the crime. It is proper to provide

background information to the jury to allow them to examine the

full transaction. The prosecutor was not required, under the facts

of this case, to file a motion to admit prior bad acts evidence when

the prosecutor offered evidence to show that an investigation was

initiated by the report of identity theft of a number of Wayne

County employees and to show how investigators came to focus on

defendant.

5. The trial court did not err by denying defendant’s motion to

suppress evidence. There was probable cause to issue the search

warrant and the affidavit supporting the warrant did not contain

false information.

Affirmed.

RIMINAL

AW —

INANCIAL

RANSACTION

EVICES

A person who knowingly retains, possesses, secretes, or uses a

financial transaction device without the consent of the device-

holder is guilty of a felony regardless of whether the person

attempts to access a proprietary account with the device; a record

or copy of information that can be used to gain access to money,

credit accounts, or anything of value may be a financial transac-

tion device (MCL 750.157m[f][v], 750.157n).

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

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, Timothy A. Baughman, Chief of Research, Train-

ing, and Appeals, and Olga Agnello, Assistant Prosecut-

ing Attorney, for the people.

Law Offices of Robert J Boyd III, P.C. (by Robert J

Boyd III), and Patricia A. Malone, in propria persona,

for defendant.

Before: D

AVIS

,P.J., and F

ORT

OOD

and S

ERVITTO

,JJ.

URIAM

. Defendant was convicted, following a

jury trial, of three counts of stealing or retaining a

2010] P

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649

financial transaction device without consent, MCL

750.157n(1). She was sentenced to one year of proba-

tion. Defendant appeals as of right, and we affirm.

Carla Sledge, Wayne County’s chief financial officer,

contacted the Wayne County Sheriff’s Department after

learning that several high-ranking employees were the

victims of identity theft. Specifically, the credit card

information for several employees was now being

mailed to the same address. With regard to Sledge, an

individual named Terry Lewis had attempted to change

the mailing address and approved users for her credit

card. Detective Eric Catner investigated the case and

found that Terry Lewis had attempted to change the

account information of other employees who worked in

the financial offices of Wayne County government.

When Lewis was located, he identified DeJuan White-

head as the source of the personal identification infor-

mation belonging to Wayne County employees. White-

head reportedly obtained the information from a female

employee who worked for Wayne County. Through the

use of the “auto track” system, Detective Catner

learned that, at one time, Whitehead lived with defen-

dant. The auto track system reveals connections be-

tween individuals using references, mailing addresses,

credit applications, and other information.

As a result of the investigation, a search warrant was

executed at defendant’s residence in Oakland County.

Under some clothing, a blue notebook was recovered

from a dresser in defendant’s bedroom. The blue note-

book contained “post-it” self-stick notes with personal

information relating to four Wayne County employees

written on them. A dietician employed by the county

identified a post-it note containing her social security

number, driver’s license number, date of birth, phone

number, and bank account number. She had provided

650 287 M

ICH

648 [Mar

bank account information to allow her checks to be

deposited directly in her bank account. The dietician

did not know defendant and never authorized her to

have this information. A former summer law clerk

identified a post-it note containing her social security

number, date of birth, and driver’s license number. She

did not know defendant and did not authorize her to

have this information. An assistant prosecuting attor-

ney identified a post-it note containing her social secu-

rity number, driver’s license number, date of birth,

home address, telephone numbers, and bank account

number. The bank account number was provided to the

county to allow for direct deposits. The prosecutor did

not know defendant and did not authorize defendant to

have that information at her home.

Wayne County employees testified that a recently

enacted federal law required that the government pro-

tect the social security numbers of employees. Thereaf-

ter, employees were given identification numbers when

hired and were identified by this number. Additionally,

payroll department employees had no use for all of the

information found on the post-it notes. Specifically, the

payroll department did not maintain records containing

driver’s license numbers. The human resources depart-

ment would maintain records containing driver’s li-

cense numbers. An employee’s work password limited

their access to information dealing with their depart-

ment.

An employee could not log onto the system and

obtain information retained for other departments.

The fourth employee was out of state and did not testify at trial. The

trial court granted defendant’s motion for a directed verdict with regard

to the charge concerning this individual.

The testimony at trial indicated that file cabinets containing personal

information were kept near the payroll department. The payroll manager

testified that defendant had access to the keys, but defendant denied this

assertion.

2010] P

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651

Defendant testified that she was assigned to the

management and budget office, but worked in payroll

when necessary. She testified that she was not as-

signed a password to access the payroll division

information, rather payroll employee Alyse Cade

would log onto the system under her identification

and allow defendant to work under her password.

Defendant testified that Cade had to leave early one

day and needed to lock up all of the forms. Therefore,

defendant wrote all of the information that she may

need for data entry on post-it notes and placed it in a

notebook she used at work.

Defendant forgot that she

had this information and did not realize that she had

taken it home. She learned about the post-it notes after

the police executed a search warrant at her home when

she was not present. Defendant testified that she never

utilized the information and did not intend to use the

information. She testified that she did not live extrava-

gantly. However, on cross-examination, defendant ad-

mitted that she declared bankruptcy in 2005. Despite

her testimony, defendant was convicted of three counts

of stealing or retaining a financial transaction device

without consent.

I. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Defendant contends that there was insufficient evi-

dence to support the convictions for stealing or retain-

ing a financial transaction device without consent, MCL

Cade denied the assertion that she had ever allowed defendant to

access the computer through the use of Cade’s password. She also denied

the assertion that defendant needed to write information on post-it notes

to allow Cade to leave early. Cade testified that the processing of direct

deposits was not crucial and could wait until the next day if she needed

to leave early. Cade also testified that the information compiled on the

post-it notes was not necessary in the course of the payroll work.

652 287 M

ICH

648 [Mar

750.157n(1), or, in the alternative, that the verdict was

against the great weight of the evidence. We disagree.

MCL 750.157n(1) provides:

A person who steals, knowingly takes, or knowingly

removes a financial transaction device from the person or

possession of a deviceholder, or who knowingly retains,

knowingly possesses, knowingly secretes, or knowingly

uses a financial transaction device without the consent of

the deviceholder, is guilty of a felony.

MCL 750.157m(f) defines “financial transaction device”

as any of the following:

(i) An electronic funds transfer card.

(ii) A credit card.

(iii) A debit card.

(iv) A point-of-sale card.

(v) Any instrument, device, card, plate, code, account

number, personal identification number, or a record or copy

of a code, account number, or personal identification num-

ber or other means of access to a credit account or deposit

account, or a driver’s license or state identification card

used to access a proprietary account, other than access

originated solely by a paper instrument, that can be used

alone or in conjunction with another access device, for any

of the following purposes:

(A) Obtaining money, cash refund or credit account

credit, goods, services, or any other thing of value.

(B) Certifying or guaranteeing to a person or business

the availability to the deviceholder of funds on deposit to

honor a draft or check payable to the order of that person

or business.

count for the purpose of making deposits, withdrawing

funds, transferring funds between deposit accounts, ob-

taining information pertaining to a deposit account, or

making an electronic funds transfer as defined in section

2010] P

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653

3(4) of Act No. 322 of the Public Acts of 1978, being section

488.3 of the Michigan Compiled Laws.

A challenge to the sufficiency of the evidence is

reviewed de novo. People v Martin, 271 Mich App 280,

340; 721 NW2d 815 (2006). When reviewing a claim of

insufficient evidence, this Court reviews the record in a

light most favorable to the prosecution to determine

whether a rational trier of fact could find that the

essential elements of the crime were proven beyond a

reasonable doubt. In re Contempt of Henry, 282 Mich

App 656, 677; 765 NW2d 44 (2009). Appellate review of

a challenge to the sufficiency of the evidence is defer-

ential. People v Nowack, 462 Mich 392, 400; 614 NW2d

78 (2000). The reviewing court must draw all reason-

able inferences and examine credibility issues in sup-

port of the jury verdict. Id. When assessing a challenge

to the sufficiency of evidence, the trier of fact, not the

appellate court, determines what inferences may be

fairly drawn from the evidence and the weight to be

accorded those inferences. People v Hardiman, 466

Mich 417, 428; 646 NW2d 158 (2002). This Court must

not interfere with the jury’s role as the sole judge of the

facts when reviewing the evidence. People v Meshell,

265 Mich App 616, 619; 696 NW2d 754 (2005).

Statutory construction issues present questions of

law subject to review de novo. People v Keller, 479 Mich

467, 473-474; 739 NW2d 505 (2007). When the manifest

intention of the Legislature is derived from the lan-

guage of a clear statute, nothing will be read into the

clear statute. Bay Co Prosecutor v Nugent, 276 Mich

App 183, 189; 740 NW2d 678 (2007). The Legislature is

presumed to intend the meaning it plainly expressed.

People v Petty, 469 Mich 108, 114; 665 NW2d 443 (2003),

and courts may not speculate as to the intent of the

Legislature beyond the language plainly expressed in

654 287 M

ICH

648 [Mar

the statute. People v Hock Shop, Inc, 261 Mich App 521,

528; 681 NW2d 669 (2004). The function of a reviewing

court resolving disputed interpretations of statutory

language is to effectuate the legislative intent. People v

Valentin, 457 Mich 1, 5; 577 NW2d 73 (1998). When the

statutory language is clear, the courts must enforce the

statute as written. Id. The application of the law to the

facts is reviewed de novo. People v Barrera, 451 Mich

261, 269 n 7; 547 NW2d 280 (1996).

Defendant contends that there was insufficient evi-

dence to convict her because she did not have a physical

card belonging to any of the complainants. That is, she

merely “innocently possessed some personal

information/account numbers.” Defendant argues that

the possession of another’s “social security number

alone does not qualify as a ‘financial transaction de-

vice,’ ” and that defendant did not use the information

found on the post-it notes to “access a proprietary

account.” Defendant posits that when an intent to

defraud has not been shown to exist, there has been no

violation of the statute and insufficient evidence to

convict has been presented. We disagree.

Review of the plain language of the statute at issue

reveals that defendant was not required to possess the

physical cards that allow access to proprietary accounts

and the complainants did not need to suffer an actual loss

to support the convictions. As previously stated, MCL

750.157m(f)(v) addresses the conduct at issue by provid-

ing:

Any instrument, device, card, plate, code, account num-

ber, personal identification number, or a record or copy of a

code, account number, or personal identification number or

other means of access to a credit account or deposit

account, or a driver’s license or state identification card

used to access a proprietary account, other than access

2010] P

EOPLE V

ALONE

655

originated solely by a paper instrument, that can be used

alone or in conjunction with another access device, for any

of the following purposes:

(A) Obtaining money, cash refund or credit account

credit, goods, services, or any other thing of value.

(B) Certifying or guaranteeing to a person or business

the availability to the deviceholder of funds on deposit to

honor a draft or check payable to the order of that person

or business.

for the purpose of making deposits, withdrawing funds,

transferring funds between deposit accounts, obtaining infor-

mation pertaining to a deposit account, or making an elec-

tronic funds transfer as defined in section 3(4) of Act No. 322

of the Public Acts of 1978, being section 488.3 of the Michigan

Compiled Laws. [MCL 750.157m(f)(v).]

MCL 750.157m(f)(v) does not require actual physical

possession of identification numbers that can be used to

access a proprietary account, and an attempt to access a

proprietary account need not occur.

Rather, a “record

or copy” of information that “can be used” to obtain

access to money, credit accounts, or anything of value is

sufficient. MCL 750.157m(f)(v)(A) and (C). Therefore,

defendant’s decision to copy the driver’s license num-

bers, social security numbers, and bank account num-

bers without the authorization of the employees is

conduct prohibited by the plain language of the statute.

MCL 750.157n; Valentin, 457 Mich at 5. The statute at

issue does not require an actual attempt to gain access

The dietician and the assistant prosecuting attorney testified that the

information provided was necessary to allow for the direct deposit of their

paychecks into their bank accounts. Therefore, this testimony demon-

strated that this information could access a proprietary account. More-

over, driver’s license numbers and social security numbers are commonly

provided to verify identification on existing bank or credit accounts and

to create new accounts.

656 287 M

ICH

648 [Mar

to the accounts by the possessor of the copy of the

proprietary information.

Defendant contends that her possession of the informa-

tion was inadvertent and innocent, and therefore, there

was insufficient evidence to support the convictions. We

disagree. Although defendant testified that she copied the

information in the course of her employment, payroll

employee Cade contradicted defendant’s testimony. Cade

testified that she did not allow defendant to access the

programs through the use of her password, and the

information copied by defendant was not necessary to

complete direct deposits. Additionally, other employees

testified that the information compiled by defendant was

not gathered in one location and was not necessary for the

completion of defendant’s work. Although defendant tes-

tified that she gathered the information in the course of

her employment and innocently took the information

home, the jury rejected the credibility of those assertions.

Nowack, 462 Mich at 400. Therefore, the challenge to the

sufficiency of the evidence to support the convictions is

without merit.

II. CONSTITUTIONAL CHALLENGE

Next, defendant challenges the constitutionality of

the statute as vague and overbroad both on its face and

Defendant contends that the innocent possession and the failure to

acquire and use the actual account numbers also demonstrate that the

verdict was against the great weight of the evidence. In light of the

application of the law to the facts of the case, the inferences from the

evidence, and the assessment of the credibility of the witnesses, this

challenge is without merit. Nowack, 462 Mich at 400; Barrera, 451 Mich at

269 n 7. In a Standard 4 brief, defendant asserted that the information

provided that the crime occurred in 2007, but trial testimony demonstrated

that the information was gathered in 2005. MCL 750.157n(1) criminalizes

the knowing retention and possession of a financial transaction device.

Therefore, the challenge to the timeframe is without merit.

2010] P

EOPLE V

ALONE

657

as applied to defendant. We disagree. Statutes are

presumed to be constitutional. People v Harper, 479

Mich 599, 621; 739 NW2d 523 (2007). To overcome this

presumption, the unconstitutionality must be readily

apparent. In re McEvoy, 267 Mich App 55, 68; 704

NW2d 78 (2005). “The party challenging a statute’s

constitutionality cannot merely claim unconstitutional-

ity, but has the burden of proving its invalidity.” Id.

“The presumption of constitutionality may justify a

narrow construction or even a construction against the

natural interpretation of the statutory language.”

People v Lueth, 253 Mich App 670, 675; 660 NW2d 322

(2002). In People v Hrlic, 277 Mich App 260, 263; 744

NW2d 221 (2007), this Court delineated the rules

applicable to a statute challenged as unconstitutionally

vague:

A statute may be unconstitutionally vague on any of

three grounds: (1) it is overbroad, impinging on First

Amendment freedoms, (2) it fails to provide fair notice of

the conduct proscribed, or (3) it is so indefinite that it

confers unlimited and unstructured discretion on the trier

of fact to determine whether an offense has occurred. To

evaluate a vagueness challenge, this Court must examine

the entire text of the statute and give the words of the

statute their ordinary meanings. “To afford proper notice

of the conduct proscribed, a statute must give a person of

ordinary intelligence a reasonable opportunity to know

what is prohibited.” A term that requires persons of

ordinary intelligence to speculate about its meaning and

differ on its application may not be used. To be sufficiently

definite, the meaning of a term must be “fairly ascertain-

able by reference to judicial interpretations, the common

law, dictionaries, treatises, or the commonly accepted

meanings of words.” Vagueness challenges must be consid-

ered in light of the facts at issue. [Citations omitted.]

A defendant may not challenge a statute as unconstitu-

tionally vague when the defendant’s own conduct is

658 287 M

ICH

648 [Mar

fairly within the constitutional scope of the statute.

People v Hill, 269 Mich App 505, 525; 715 NW2d 301

(2006). The fact that a hypothetical may be posed that

would cast doubt upon the statute does not render it

unconstitutionally vague. People v Derror, 475 Mich

316, 337; 715 NW2d 822 (2006). Rather, the analysis

must center on whether the statute, as applied to the

actions of the individual defendant, is constitutional.

Id.

The statute at issue, MCL 750.157n(1) criminalizes

the knowing retention and possession of a financial

transaction device without the consent of the device-

holder. A financial transaction device refers to any

record or copy of an account number or personal

identification number that can be used to access money,

credit, a deposit account, or any other thing of value.

MCL 750.157m(f)(v)(A) and (C). In the present case,

defendant copied account numbers belonging to the

complainants and had that information in her personal

possession without their consent. Defendant was en-

titled to access some of the information in the course of

her employment, but nonetheless, took the information

to her home. The jury rejected defendant’s testimony

that her possession of the information was inadvertent

and the result of a mistake. Although the monetary and

credit accounts of the complainants had not yet been

compromised, the statute at issue punishes retention or

possession of a financial transaction device that can be

used to access proprietary accounts. Accordingly, defen-

dant’s challenge to the constitutionality of the statute

with regard to her conduct is without merit.

Defendant contends that the statute is impermissibly vague because

it does not identify the specific types of information, such as social

security number or driver’s license number, which is improper to possess.

In the present case, defendant gained access to the driver’s license

number, social security number, and bank account information of em-

2010] P

EOPLE V

ALONE

659

III. VENUE

Defendant argues that she was wrongfully convicted

because the action was tried in Wayne County, but the

evidence introduced at trial was recovered in Oakland

County. We disagree. “A trial court’s determination

regarding the existence of venue in a criminal prosecu-

tion is reviewed de novo.” People v Fisher, 220 Mich App

133, 145; 559 NW2d 318 (1996).

Generally, a defendant must be tried in the county

where the crime is committed. People v Jendrzejewski,

455 Mich 495, 499; 566 NW2d 530 (1997). Jurisdiction

addresses the judicial power to hear and determine a

criminal prosecution whereas venue relates to and

defines where the prosecution is to be brought or tried.

People v Gayheart, 285 Mich App 202, 215-216; 776

NW2d 330 (2009). Although venue is not an essential

element of a crime, it must be proven beyond a reason-

able doubt, and the determination regarding venue

presents a factual issue for the jury. Id. at 216. Venue

may be proven by circumstantial evidence and reason-

able inferences drawn from the evidence. Id.

“Whenever a felony consists or is the culmination of

2 or more acts done in the perpetration thereof, said

felony may be prosecuted in any county in which any 1

ployees in the course of her employment. This information allowed access

to proprietary accounts because it allowed direct deposits of paychecks

into the account of the employee. Because defendant’s conduct falls

squarely within the terms of the statute, her challenge fails. Derror, 475

Mich at 337. Defendant also posits that the statute criminalizes the

gathering of account information by bank employees and Secretary of

State employees. The presentation of hypothetical scenarios does not

alter the conclusion that defendant’s conduct falls within the scope of the

statute. Id. Moreover, there is a distinction between the provision of

account information to an employee with the consent of the deviceholder

for purposes of engaging in a transaction and the subsequent, noncon-

sensual appropriation by an employee outside the scope of one’s employ-

ment.

660 287 M

ICH

648 [Mar

of said acts was committed.” MCL 762.8. When apply-

ing MCL 762.8, the location of the commission of an act

is not limited to the place of the defendant’s physical

presence. Fisher, 220 Mich App at 151-152. Rather,

when an act has effects elsewhere that are essential to

the offense, the offense is effectively committed in the

place where the act has its effects. Id. Although evi-

dence was retrieved from defendant’s Oakland County

residence, the personal information was taken in the

course of defendant’s employment in Wayne County.

Contrary to the argument raised by the defense, the

date of the offense as stated in the information is not

the test for determining venue. Accordingly, this claim

of error is without merit.

IV. BAD ACTS EVIDENCE

Defendant asserts that her convictions must be re-

versed or vacated because the trial court improperly

admitted other prior bad acts evidence that was more

prejudicial than probative particularly when other per-

sons committed the improper acts. We disagree. A trial

court’s decision to admit evidence is reviewed for an

abuse of discretion. People v Katt, 468 Mich 272, 278;

662 NW2d 12 (2003). When the decision to admit

evidence involves a preliminary question of law, such as

whether an evidentiary rule precludes admission of the

evidence, this issue of law is reviewed de novo. Id.An

abuse of discretion occurs when the trial court selects

an outcome that falls outside the range of reasonable

and principled outcomes. People v Babcock, 469 Mich

247, 269; 666 NW2d 231 (2003).

Defendant’s assertion of error is simply without

merit. The prosecution did not seek permission to

present other acts evidence in accordance with MRE

404(b). Rather, the evidence was offered to show that

2010] P

EOPLE V

ALONE

661

the investigation was initiated by the report of identity

theft of a number of Wayne County employees and how

investigators came to focus on defendant. It is proper to

provide background information to the jury to allow them

to examine the full transaction. “The more the jurors

kn[ow] about the full transaction, the better equipped

they [are] to perform their sworn duty.” People v Sholl,

453 Mich 730, 742; 556 NW2d 851 (1996).

It is the nature of things that an event often does not

occur singly and independently, isolated from all others,

but, instead, is connected with some antecedent event from

which the fact or event in question follows as an effect from

a cause. When such is the case and the antecedent event

incidentally involves the commission of another crime, the

principle that the jury is entitled to hear the “complete

story” ordinarily supports the admission of such evidence.

State v Villavicencio, 95 Ariz 199; 388 P2d 245 (1964);

People v Wardwell, 167 Cal App 2d 560; 334 P2d 641 (1959);

McCormick on Evidence (2d ed), § 190. [People v Delgado,

404 Mich 76, 83; 273 NW2d 395 (1978).]

Evidence of other criminal acts is admissible when it

explains the circumstances of the crime. Sholl, 453

Mich at 742 (citations omitted). In light of the limited

purpose for the evidence, the prosecution was not

required to file a motion to admit prior bad acts

evidence. Thus, this issue does not entitle defendant to

appellate relief.

V. MOTION TO SUPPRESS

Lastly, defendant contends that the trial court erred

by denying the motion to suppress evidence because the

search warrant lacked probable cause and the affidavit

contained false information. We disagree. On appeal,

the trial court’s findings of fact on a motion to suppress

evidence are reviewed for clear error, but the trial

court’s ultimate decision on the motion is reviewed de

662 287 M

ICH

648 [Mar

novo. People v Williams, 472 Mich 308, 313; 696 NW2d

636 (2005). “A finding is clearly erroneous when, al-

though there is evidence to support it, the reviewing

court is left with a definite and firm conviction that a

mistake has been made.” People v Lanzo Constr Co, 272

Mich App 470, 473; 726 NW2d 746 (2006).

A search warrant may only be issued upon a showing of

probable cause. US Const, Am IV; Const 1963, art 1, § 11;

MCL 780.651(1). Probable cause for issuance of a search

warrant exists if there is a substantial basis for inferring a

fair probability that contraband or evidence of a crime

exists in the location to be searched. People v Unger, 278

Mich App 210, 244; 749 NW2d 272 (2008). When review-

ing a magistrate’s decision to issue a search warrant, this

Court must examine the search warrant and underlying

affidavit in a common-sense and realistic manner. People v

Darwich, 226 Mich App 635, 636-637; 575 NW2d 44

(1997). Under the totality of the circumstances, this Court

must then determine whether a reasonably cautious per-

son could have concluded that there was a substantial

basis for the magistrate’s finding of probable cause. Id.at

637. When a person of reasonable caution would conclude

that contraband or evidence of criminal conduct will be

found in the place to be searched, probable cause for a

search exists. Id.

Defendant contends that probable cause was lacking

because defendant’s name was never mentioned in the

search warrant, there was no nexus to defendant’s

home, the search warrant contained untrue statements,

and the information was stale.

The trial court held an

evidentiary hearing and rejected defendant’s challenges

to the search warrant.

At the evidentiary hearing, defendant did not argue that the infor-

mation was stale, and the trial court did not rule on the issue.

2010] P

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663

Review of the search warrant and affidavit in a

common-sense and realistic manner, Darwich, 226

Mich App at 636-637, reveals that the trial court did

not err by denying the motion to suppress. Review of

the affidavit reveals that the detective set forth the

reason for the investigation into identity theft, the

complaint from a county official regarding employee

targets of identify theft, the initial person suspected

in the crimes, and the information provided by the

first suspect regarding associates. Defendant con-

tends that deliberate falsehoods were placed into the

affidavit. Specifically, it was asserted that the county

employee allegedly involved in the crimes was the

aunt of a suspect. However, the detective deliberately

omitted this information and merely indicated that a

female employee was involved. Defendant also asserts

that the specific county building involved was never

delineated, but the detective chose the building lo-

cated on Randolph Street. When questioned regard-

ing these challenges, the detective testified that de-

fendant was identified as an “aunt” of a suspect, but

she was not a blood relative, but merely a close friend.

Additionally, the detective noted that the primary

complainants and the financial division were housed

in the Randolph building. The trial court concluded

that the factual challenges did not constitute false-

hoods that would invalidate the search warrant, and

we cannot conclude that the factual findings are

clearly erroneous. Williams, 472 Mich at 313. Finally,

with regard to the staleness of the information,

defense counsel did not question the detective regard-

ing the timeframe between the interviews with the

suspects and the execution of the search warrant.

Because a factual record to support defendant’s claim

was never developed, the issue has been abandoned.

664 287 M

ICH

648 [Mar

People v Howard, 226 Mich App 528, 537; 575 NW2d

16 (1997).

Affirmed.

We note that defendant filed a Standard 4 brief that challenges the

scope of MCL 750.157n and the great weight of the evidence. These issues

were raised in the brief on appeal filed by counsel. Defendant contends

that there was no testimony that post-it notes would allow access to

proprietary accounts. Detective Catner testified that an investigation was

triggered because of the dissemination of personal information belonging

to Wayne County employees. This dissemination had resulted in changes

to credit card information and attempts by other individuals to be added

to legitimate accounts. As previously stated, these issues are without

merit.

2010] P

EOPLE V

ALONE

665

DECKER v ROCHOWIAK

Docket Nos. 284155, 285870, and 290633. Submitted January 6, 2010, at

Lansing. Decided March 30, 2010, at 9:05 a.m.

Eric Decker, a minor, by his next friend, Robin Decker, brought a

medical malpractice action in the Montcalm Circuit Court against

Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City

Hospital, doing business as Center for Women’s Health Care, and

Carson City Hospital, Inc. (the Carson City defendants), and

Michael Stoiko, M.D., and Spectrum Health Hospitals, Inc., doing

business as Butterworth Hospital and DeVos Children’s Hospital

(the Spectrum defendants). Plaintiff alleged that defendants com-

mitted malpractice during the care and treatment of plaintiff

following his birth at Carson City Hospital. On September 23,

2004, plaintiff served his notice of intent (NOI) to commence the

action on defendants. On June 5, 2006, plaintiff filed his action

with supporting affidavits of merit. On January 9, 2008, plaintiff

moved to file an amended complaint. The trial court, Charles H.

Miel, J., granted the motion. Plaintiff thereafter served on defen-

dants a supplemental NOI. A written order granting the motion

was entered on February 19, 2008, and plaintiff filed the amended

complaint on February 28, 2008. The Spectrum defendants

(Docket No. 284155) sought leave to appeal the February 19, 2008,

order and also sought in the trial court partial summary disposi-

tion of the 17 new allegations regarding the specific ways in which

the Spectrum defendants breached the applicable standards of

care raised in plaintiff’s amended complaint. The trial court

denied the motion for summary disposition on May 19, 2008. The

Spectrum defendants (Docket No. 285870) sought leave to appeal

the May 19, 2008, order. The Court of Appeals granted the

Spectrum defendants’ applications for leave to appeal and consoli-

dated the appeals in unpublished orders entered September 8,

2008, amended September 18, 2008 (Docket Nos. 284155 and

285870). While the applications for leave to appeal were pending,

the Spectrum defendants again moved for summary disposition in

the trial court with regard to all of plaintiff’s claims. The Carson

City defendants joined the motion in part. The trial court denied

the motions and entered an order on February 9, 2009, denying the

Spectrum defendants’ motion for summary disposition. On March

666 287 M

ICH

666 [Mar

2, 2009, the Spectrum defendants (Docket No. 290633) sought

leave to appeal the February 9, 2009, order. The Court of Appeals

granted leave to appeal and consolidated the appeal in Docket No.

290633 with the appeals in Docket Nos. 284155 and 285870 in an

unpublished order entered May 5, 2009. The Carson City defen-

dants filed in the Court of Appeals a cross-appeal on May 26, 2009.

On June 4, 2009, the trial court entered an order denying the

Carson City defendants’ prior motion for joinder and concurrence

in the Spectrum defendants’ motion for summary disposition.

The Court of Appeals held:

1. The trial court did not err by denying the Spectrum defen-

dants’ motion for partial summary disposition regarding the 17

new allegations raised in the amended complaint. Plaintiff’s

amended complaint did not assert any new potential causes of

injury but instead alleged 17 specific ways in which defendants

breached the applicable standards of care. Plaintiff’s NOI clearly

provided the Spectrum defendants adequate notice of the claims

against them. The allegations in the amended complaint merely

set forth more specific details, clarifying plaintiff’s claims against

the Spectrum defendants. Plaintiff did make a good-faith effort to

identify and provide notice of the new allegations of how the

standards of care were breached.

2. Plaintiff was required under the facts of this case to provide

the statutory NOI before he commenced his lawsuit and did

provide such notice. Plaintiff was not required to file a second NOI

where the amended complaint did not name any new defendants

or set forth any new potential causes of injury and where the

action had already been commenced by the filing of the original

complaint.

3. The trial court did not abuse its discretion by granting

plaintiff’s motion to amend his complaint.

4. The NOI contained a sufficient statement of causation

regarding the manner in which it was alleged that defendants’

breach of the standards of practice or care was the proximate cause

of the injuries claimed in the notice. The trial court properly

denied defendants’ motion for summary disposition with regard to

the sufficiency of the NOI.

5. Plaintiff’s expert witness with regard to the malpractice

claims against the defendants’ nurses applied the proper standard

of care with regard to those claims. The expert recognized that,

with regard to the procedures at issue, the same standard of care

applied locally and nationally. The expert also demonstrated her

familiarity with the standard of care in a community similar to the

community in which the defendants’ nurses practiced.

2010] D

ECKER V

OCHOWIAK

667

6. The claims did not merely allege the nurses’ failure to chart

their communications with other medical providers but also al-

leged the level of communication that should have existed. The

trial court properly denied defendants’ motion for summary dis-

position that alleged that the nurses were not obligated by hospital

policy to document their verbal communications with the physi-

cians who were providing care to plaintiff.

Affirmed and remanded.

1. A

CTIONS —

EDICAL

ALPRACTICE —

LEADING —

MENDMENT OF

LEADINGS —

OTICE OF

NTENT TO

OMMENCE AN

CTION

A plaintiff in a medical malpractice action must provide the statu-

torily required notice of intent to file the action not less than 182

days before the action is commenced; a plaintiff who has complied

with such requirement and thereafter files a complaint to com-

mence the action is not required to file a second notice of intent

when the plaintiff is then permitted to file an amended complaint

that does not name new defendant parties or set forth new

potential causes of injury but merely clarifies the plaintiff’s claims

against the defendants (MCL 600.2912b).

2. W

ITNESSES —

XPERT

ITNESSES —

EDICAL

ALPRACTICE —

TANDARDS OF

ARE.

A party offering the testimony of an expert witness in a medical

malpractice action must demonstrate the witness’ knowledge of

the applicable standard of care; a nonlocal expert may testify if the

expert demonstrates a familiarity with the standard of care in an

area similar to the community in which the defendant practiced.

3. A

CTIONS —

EDICAL

ALPRACTICE —

URSES —

TANDARDS OF

ARE

Nurses do not engage in the practice of medicine although they are

licensed healthcare professionals; the common-law standard of

care applicable to malpractice actions against nurses is the skill

and care ordinarily possessed and exercised by practitioners of the

profession in the same or similar localities.

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

Turner & Turner, P.C. (by Matthew L. Turner), for Eric

Decker.

Johnson & Wyngaarden, P.C. (by David R. Johnson

and Michael L. Van Erp), for Michael Rochowiak, D.O.,

Alberto Betancourt, M.D., Carson City Hospital, and

Carson City Hospital, Inc.

668 287 M

ICH

666 [Mar

Smith Haughey Rice & Roegge (by William L. Henn

and Carol D. Carlson) for Michael Stoiko, M.D., and

Spectrum Health Hospitals, Inc.

Before: C

AVANAGH

,P.J., and F

ITZGERALD

and S

HAPIRO

JJ.

AVANAGH

,P.J. In Docket Nos. 284155 and 285870,

defendants Michael Stoiko, M.D., Spectrum Health

Hospitals, Inc., doing business as Butterworth Hospital,

and Spectrum Health Hospitals, Inc., doing business as

DeVos Children’s Hospital (the Spectrum defendants),

appeal by leave granted an order granting plaintiff, Eric

Decker, a minor, by his next friend Robin Decker, leave

to amend his medical malpractice complaint, and an

order denying the Spectrum defendants’ motion for

partial summary disposition with regard to those claims

added by amendment. We affirm.

In Docket No. 290633, the Spectrum defendants

appeal by leave granted an order denying their motion

for summary disposition that challenged the sufficiency

of plaintiff’s notice of intent (NOI) and the expert

support for plaintiff’s nursing malpractice claims. Also

in Docket No. 290633, defendants Michael Rochowiak,

D.O., Alberto Betancourt, M.D., Carson City Hospital,

doing business as Center for Women’s Health Care, and

Carson City Hospital, Inc. (the Carson City defendants),

challenge on cross-appeal an order denying their mo-

tion for joinder and concurrence in the Spectrum defen-

dants’ motion for summary disposition with regard to

the sufficiency of plaintiff’s NOI. We affirm.

These consolidated interlocutory appeals arise out of

defendants’ care and treatment of plaintiff, Eric Decker

(Eric), who was born on July 17, 1996, at defendant

Carson City Hospital. Plaintiff has averred that he was

born by vacuum delivery necessitated by fetal distress.

2010] D

ECKER V

OCHOWIAK

669

He was not seen by a pediatrician. Although his biliru-

bin was elevated and he started becoming reluctant to

feed, Eric was discharged the next day, on July 18, 1996.

On July 19, 1996, Eric was taken back to Carson City

Hospital because he was lethargic and reluctant to feed.

After being diagnosed with persistent hypoglycemia

and jaundice caused by an elevated bilirubin level, he

was airlifted to DeVos Children’s Hospital on Spectrum

Health’s Butterworth Campus for medical management

in the pediatric intensive care unit (PICU). Upon ar-

rival, it was determined that Eric was profoundly

hypoglycemic with a critically low glucose level of 4

mg/dl, where an acceptable range appears to be 60 to

100 mg/dl. A subclavian venous catheter was inserted to

infuse glucose solutions. Although his blood glucose

level increased somewhat for a short period, it remained

dangerously low. Seizure activity was noted.

A brain CT scan performed on July 20, 1996, revealed

an extensive hypoxic ischemic brain injury and hemor-

rhages. Eric’s condition continued to deteriorate, cul-

minating in a cardiac arrest. During the resuscitation

efforts, it was determined that the subclavian venous

catheter was not in the vein. Thus, the fluid that had

been infused through it did not go into Eric’s blood-

stream, but into his chest cavity. The large amount of

fluid in Eric’s chest cavity interfered with the ability of

Eric’s heart to beat—a condition known as cardiac

tamponade—which led to his cardiopulmonary arrest.

After a functioning femoral vein catheter was placed,

Eric’s condition stabilized. He remained hospitalized

through September 2, 1996. Eric has been diagnosed

with cerebral palsy from an early anoxic (lack of oxy-

gen) brain injury. He is developmentally delayed, suf-

fers from sensory deficits, and is legally blind.

670 287 M

ICH

666 [Mar

On September 23, 2004, plaintiff served his NOI on

defendants as required by MCL 600.2912b, and on June

5, 2006, he filed his medical malpractice case with

supporting affidavits of merit. On January 9, 2008,

plaintiff moved for leave to file an amended complaint

that alleged 17 specific ways in which the Spectrum

defendants breached the applicable standards of care.

Plaintiff argued that the amendment was proper be-

cause (1) discovery remained open and experts had not

been deposed, (2) the amendment merely clarified alle-

gations and issues and was made possible after particu-

lar information was learned through the discovery

process, (3) the clarifications “ultimately relate[] back

to the underlying lynch pin of this entire case which is

that they did not appropriately monitor and maintain

this baby’s glucose level,” and (4) defendants would not

be prejudiced by the amendment.

The Spectrum defendants opposed plaintiff’s motion

to amend, arguing that (1) plaintiff had not shown why

“justice” required that leave be granted under MCR

2.118(A)(2) in light of the inexcusable delay in bringing

such claims that were discernable from their inception;

(2) plaintiff failed to raise these new theories in the NOI

as required by MCL 600.2912b, thus such claims were

barred by the statute of limitations; and (3) defendants

would be unduly prejudiced if plaintiff were allowed to

amend the complaint to add these new allegations. Oral

arguments were heard on January 31, 2008. The trial

court agreed with plaintiff’s arguments, and granted

plaintiff’s motion for leave to file an amended com-

plaint. Thereafter, plaintiff served on defendants a

supplemental NOI containing the additional allega-

tions. A written order granting plaintiff’s motion was

entered on February 19, 2008, and plaintiff filed the

amended complaint on February 28, 2008. On March

11, 2008, under Docket No. 284155, the Spectrum

2010] D

ECKER V

OCHOWIAK

671

defendants filed with this Court their application for

leave to appeal the trial court’s February 19, 2008,

order.

On April 8, 2008, the Spectrum defendants moved for

partial summary disposition, seeking dismissal of the 17

allegations raised in plaintiff’s amended complaint.

Defendants essentially reiterated the arguments they

made in opposition to plaintiff’s motion to amend,

including that the specific allegations were not identi-

fied in the NOI and were barred from being added to

this lawsuit by the expiration of the period of limita-

tions. Defendants also contested the fact that plaintiff

did not wait 182 days after serving the supplemental

NOI before filing the amended complaint. The trial

court heard oral arguments on April 24, 2008, and

agreed with plaintiff’s arguments. An order denying

defendants’ motion was entered on May 19, 2008. On

June 9, 2008, under Docket No. 285870, the Spectrum

defendants filed with this Court their application for

leave to appeal the trial court’s May 19, 2008, order.

On September 8, 2008, this Court granted the Spec-

trum defendants’ applications for leave to appeal in

Docket Nos. 284155 and 285870, and the appeals were

administratively consolidated. See Decker v Rochowiak,

unpublished order of the Court of Appeals, entered

September 8, 2008 (Docket No. 284155), amended Sep-

tember 18, 2008; Decker v Rochowiak, unpublished

order of the Court of Appeals, entered September 8,

2008 (Docket No. 285870), amended September 18,

2008.

On November 26, 2008, while Docket Nos. 284155

and 285870 were pending on appeal, the Spectrum

defendants again moved for summary disposition in the

trial court. They moved for summary dismissal as to all

of plaintiff’s claims, arguing that plaintiff’s initial NOI

672 287 M

ICH

666 [Mar

failed to contain a statement of proximate cause detail-

ing the manner in which defendants’ alleged negligence

resulted in plaintiff’s injuries as required by MCL

600.2912b(4)(e). The Spectrum defendants also moved

for summary disposition as to plaintiff’s nursing mal-

practice claims. They asserted that (1) plaintiff’s only

expert witness could not testify because she improperly

relied upon a national, rather than local, standard of

care with regard to these claims, and (2) plaintiff’s

expert was not qualified to testify in support of plain-

tiff’s negligent charting claims. The Carson City defen-

dants joined the motion for summary disposition, chal-

lenging the sufficiency of the statement of causation in

plaintiff’s NOI. Plaintiff opposed the motions.

On December 19, 2008, oral arguments were held.

The trial court rejected defendants’ claims that plain-

tiff’s NOI was deficient, holding that “reading it in its

entirety it describes the manner in which the various

breaches of standard of care were the proximate cause

of the injuries and I’ll also adopt by reference the

arguments of [plaintiff’s counsel] and his brief in con-

nection with that.” The court also rejected the Spec-

trum defendants’ challenge to plaintiff’s nursing mal-

practice claims, holding that the expert seemed to

testify that the national standard of care and the local

standard of care were the same and, with regard to the

charting claim, “the standard of care determines what

the nurses should do, not whether the hospital form

provides for it.” After noting that it was adopting the

arguments and brief of plaintiff, the trial court denied

defendants’ motions. On February 9, 2009, an order

denying the Spectrum defendants’ motion for summary

disposition was entered.

On March 2, 2009, under Docket No. 290633, the

Spectrum defendants filed with this Court their appli-

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cation for leave to appeal the trial court’s February 9,

2009, order. On May 5, 2009, this Court granted the

Spectrum defendants’ application for leave to appeal,

and administratively consolidated the appeal with

Docket Nos. 284155 and 285870. See Decker v Rochow-

iak, unpublished order of the Court of Appeals, entered

May 5, 2009 (Docket No. 290633). On May 26, 2009, the

Carson City defendants filed with this Court their claim

of cross-appeal. On June 4, 2009, the trial court entered

an order denying the Carson City defendants’ motion

for joinder and concurrence in the Spectrum defen-

dants’ motion for summary disposition with regard to

the sufficiency of plaintiff’s NOI.

I. DOCKET NOS. 284155 AND 285870

The Spectrum defendants argue that the trial court

erred by denying their motion for partial summary

disposition as to 17 “new” allegations raised in plain-

tiff’s first amended complaint. More specifically, defen-

dants argue that these allegations should have been

dismissed because they were not raised in plaintiff’s

NOI and are barred by the statute of limitations. We

disagree.

We review de novo the grant or denial of a motion for

summary disposition. Kreiner v Fischer, 471 Mich 109,

129; 683 NW2d 611 (2004). Likewise, issues of court

rule and statutory interpretation, as well as whether a

statute of limitations bars a claim, are reviewed de

novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d

493 (2008); Farley v Advanced Cardiovascular Health

Specialists, PC, 266 Mich App 566, 570-571; 703 NW2d

115 (2005).

A medical malpractice action cannot be filed until a

plaintiff complies with MCL 600.2912b, which provides:

674 287 M

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666 [Mar

(1) Except as otherwise provided in this section, a

person shall not commence an action alleging medical

malpractice against a health professional or health facility

unless the person has given the health professional or

health facility written notice under this section not less

than 182 days before the action is commenced.

***

(4) The notice given to a health professional or health

facility under this section shall contain a statement of at

least all of the following:

(a) The factual basis for the claim.

(b) The applicable standard of practice or care alleged by

the claimant.

standard of practice or care was breached by the health

professional or health facility.

(d) The alleged action that should have been taken to

achieve compliance with the alleged standard of practice or

care.

(e) The manner in which it is alleged the breach of the

standard of practice or care was the proximate cause of the

injury claimed in the notice.

(f) The names of all health professionals and health

facilities the claimant is notifying under this section in

relation to the claim.

The purpose of the notice requirement was explained in

Neal v Oakwood Hosp Corp, 226 Mich App 701; 575

NW2d 68 (1997), as follows:

The purpose of the notice requirement is to promote

settlement without the need for formal litigation and

reduce the cost of medical malpractice litigation while still

providing compensation for meritorious medical malprac-

tice claims that might otherwise be precluded from recov-

ery because of litigation costs. [Id. at 705, citing Senate

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675

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

Legislative Analysis, HB 4403-4406, March 22, 1993.]

See, also, Bush v Shabahang, 484 Mich 156, 174; 772

NW2d 272 (2009). Once notice is given in compliance

with MCL 600.2912b, the two-year limitations period is

tolled during the notice period. MCL 600.5856(c). But a

medical malpractice plaintiff has the burden of showing

compliance with the requirements of MCL 600.2912b in

order to toll the statute of limitations. Roberts v

Mecosta Co Gen Hosp (After Remand), 470 Mich 679,

686, 691; 684 NW2d 711 (2004).

Here, the Spectrum defendants argue that plaintiff’s

NOI did not include 17 specific allegations that plaintiff

raised in his first amended complaint; thus, those

“theories of malpractice liability that are not encom-

passed within [his] NOI” should have been summarily

dismissed. We disagree.

The NOI, examined as a whole, must advise “poten-

tial malpractice defendants of the basis of the claims

against them.” Id.at696n14;Boodt v Borgess Med Ctr,

272 Mich App 621, 628, 630; 728 NW2d 471 (2006),

rev’d in part on other grounds 481 Mich 558, 564

(2008). However, because the NOI comes at an early

stage of the malpractice proceeding, the plaintiff does

not have to craft the notice “with omniscience.” Roberts

(After Remand), 470 Mich at 691. Rather, the plaintiff

must “make good-faith averments that provide details

that are responsive to the information sought by the

statute and that are as particularized as is consistent

with the early notice stage of the proceedings.” Id.at

701 (emphasis in original). The NOI must “set forth

allegations in good faith, in a manner that is responsive

to the specific queries posed by the statute, and with

enough detail to allow the potential defendants to

676 287 M

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666 [Mar

understand the claimed basis of the impending mal-

practice action....”Id.at691n7.

Considered as a whole, plaintiff’s NOI clearly set

forth as the claimed basis of plaintiff’s impending

malpractice action against the Spectrum defendants

their alleged failure to properly care for, evaluate, treat,

and monitor Eric’s hypoglycemic condition, including

by the proper and timely administration of the neces-

sary glucose solutions through a properly placed central

venous line. The NOI also asserted that the hospital, as

well as the registered nurses and the physicians who

were involved in Eric’s medical management, were

liable for Eric’s resulting injuries. Contrary to the

Spectrum defendants’ argument, plaintiff’s subse-

quently filed amended complaint did not assert any

“new” potential causes of injury.

More specifically, with regard to the registered

nurses, plaintiff’s NOI set forth, in ¶ C(j), (k), (l), (m),

(n), (q), and (r), their alleged failures to (1) properly

monitor Eric’s glucose levels and the status of the

central line in light of his medical history and condition,

(2) provide the necessary care to Eric, (3) timely and

completely record, apprise, and report to physicians and

other providers with regard to Eric’s condition, and (4)

seek consultations with, or provide referrals to, quali-

fied specialists. The contested claims in plaintiff’s

amended complaint with regard to the nurses, as set

forth in ¶ 42(ll), (mm), (nn), (oo), (pp), (qq), (rr), (ss),

and (tt), included failures to (1) check Eric’s blood sugar

between 1:13 p.m. and 4:01 p.m. in violation of an order

that it be checked every hour, (2) administer glucagon,

potassium, and a bolus of glucose in a timely manner

and/or as ordered, (3) timely report to physicians Eric’s

changed and decreased heart rate, respiratory rate, and

oxygen saturation, (4) timely report problems with the

2010] D

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677

central line and Eric’s seizure activity, (5) execute a

change from dextrose to D-25 as ordered, and (6) timely

report a drop in blood sugar on July 20, from 90 at 4:00

a.m. to 48 at 5:07 a.m. to 37 at 5:50 a.m. Plaintiff’s NOI

clearly provided the Spectrum defendants with ad-

equate notice of the basis of his claims against the

registered nurses involved in Eric’s medical manage-

ment.

With regard to the physicians who were involved in

Eric’s medical management, plaintiff’s NOI set forth, in

¶ C(a), (c), (d), (e), (f), (h), (i), (l), (m), (n), (r), (t), (u), (z),

and (aa), their alleged failures to (1) properly place the

central line and verify its placement as well as contin-

ued function, (2) properly monitor Eric’s glucose levels

and the status of the central line in light of his medical

history and condition, (3) conduct proper, complete, and

necessary examinations and diagnostic tests, (4) prop-

erly and timely observe, diagnose, and treat his medical

conditions, (5) seek consultations with, or provide re-

ferrals to, qualified specialists, (6) timely and com-

pletely record, apprise, and report to other treating

physicians regarding Eric’s condition, and (7) super-

vise, advise, and/or instruct nonphysician personnel.

The contested claims in plaintiff’s amended complaint

with regard to the physicians, as set forth in ¶ 42(dd),

(ee), (ff), (gg), (hh), (ii), (jj), and (kk), included failures

to (1) immediately treat Eric’s hypoglycemic condition

with intravenous fluids, including dextrose solutions,

(2) properly place the central line, (3) verify the central

line’s placement and continued function, particularly in

light of Eric’s declining condition and the diagnostic

results, (4) properly and timely respond to the problems

the registered nurses were experiencing with the cen-

tral line, and (5) properly and timely respond to and

treat the decreases in Eric’s blood sugar. Again, plaintiff’s

NOI clearly provided the Spectrum defendants with

678 287 M

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666 [Mar

adequate notice of these claims against the physicians

involved in Eric’s medical management. And, as the

trial court noted, the allegations in plaintiff’s amended

complaint merely set forth more specific details, clari-

fying plaintiff’s claims against the Spectrum defen-

dants, including the registered nurses and physicians

involved in Eric’s medical management.

In support of their claim that plaintiff’s amended

complaint asserted new “theories of malpractice liabil-

ity” that should have been summarily dismissed for lack

of notice, defendants rely on Gulley-Reaves v Baciewicz,

260 Mich App 478; 679 NW2d 98 (2004). That reliance

is misplaced because the facts in Gulley-Reaves are

clearly distinguishable. In that case, the plaintiff’s NOI

set forth as the basis of her claim a particular surgical

procedure that resulted in damage to her vocal cords

which “likely occurred because of the inexperience of

the medical students or resident, who actually per-

formed the procedure.” Id. at 480. However, when the

plaintiff filed her complaint, she included claims based

on the anesthesia that was administered during the

surgery. Id. at 481. A motion for summary disposition

premised on the failure to comply with MCL 600.2912b

with respect to the anesthesia claim was denied. Id.at

484. This Court reversed, holding that “the notice did

not set forth the minimal requirements to identify that

the anesthesia was a potential cause of plaintiff’s in-

jury.” Id. at 487. Further, in light of the purpose of the

notice requirement to promote settlement without the

need for formal litigation, “[d]efendant hospital was not

given the opportunity to engage in any type of settle-

ment negotiation with regard to the anesthesia claims

because it was not given notice of the existence of any

such claim.” Id. at 488.

2010] D

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679

In the case before us, the basis of plaintiff’s claim was

that the Spectrum defendants failed to properly care

for, evaluate, treat, and monitor Eric’s hypoglycemic

condition, including by the proper and timely adminis-

tration of the necessary glucose solutions through a

properly placed central venous line. Unlike the plaintiff

in Gulley-Reaves, plaintiff’s amended complaint did not

allege any other potential cause of Eric’s injury. The

basis of plaintiff’s claims against the Spectrum defen-

dants was their failure to properly care for, evaluate,

treat, and monitor Eric’s hypoglycemic condition, in-

cluding by the proper and timely administration of the

necessary glucose solutions through a properly placed

central venous line. Thus, the purpose of the notice

requirement was realized—the Spectrum defendants

were given the opportunity to engage in settlement

negotiations with regard to these claims because they

were given notice of the same claims. Accordingly, the

trial court properly denied the Spectrum defendants’

motion for summary disposition as to the contested

allegations raised in plaintiff’s first amended complaint.

For the same reasons, we reject the Spectrum defen-

dants’ argument that plaintiff did not make a good-faith

effort to identify and provide notice of the “new”

allegations of malpractice. The basis of the claims

against these defendants did not change. The allega-

tions in the amended complaint merely clarified with

more specificity the manner in which the standards of

care were breached, which could be discerned more

clearly with the aid of the discovery process. This is not

a case where, as in Gulley-Reaves, the plaintiff set forth

a totally new and different potential cause of injury in

an amended complaint compared to the potential cause

of injury set forth in her NOI, e.g., the manner in which

680 287 M

ICH

666 [Mar

a particular surgical procedure was performed com-

pared to the manner in which anesthesia was adminis-

tered during the surgery.

Further, the Spectrum defendants’ argument that

plaintiff’s amended complaint should have been dis-

missed because it was filed before the 182-day waiting

period set forth in MCL 600.2912b(1) had expired is

without merit. The amended complaint did not name

new defendant parties, MCL 600.2912b(3), and it did

not set forth any new potential causes of injury. Thus,

plaintiff was only required under MCL 600.2912b(1) to

provide the statutory notice before he commenced his

lawsuit against these same defendants and it is undis-

puted that the requisite notice was provided. Plaintiff

was not required to file a second NOI with regard to

these defendants after he was granted leave to file his

amended complaint, a complaint that merely clarified

plaintiff’s claims against the Spectrum defendants. The

purpose of the notice requirement—to promote settle-

ment without the need for formal litigation—cannot be

realized when the litigation has already been com-

menced. See Neal, 226 Mich App at 705.

Next, the Spectrum defendants argue that plaintiff

should not have been granted leave to amend his

complaint. We disagree. “This Court reviews a trial

court’s decision to permit a party to amend its pleadings

for an abuse of discretion.” In re Kostin Estate, 278

Mich App 47, 51; 748 NW2d 583 (2008). An abuse of

discretion occurs when the decision results in an out-

come that falls outside the range of principled out-

comes. Maldonado v Ford Motor Co, 476 Mich 372, 388;

719 NW2d 809 (2006).

Under MCR 2.118(A)(2), “a party may amend a

pleading only by leave of the court....Leave shall be

freely given when justice so requires.” Trial courts have

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681

discretion to grant or deny motions for leave to amend,

but leave “should ordinarily be denied only for particu-

larized reasons such as undue delay, bad faith or dila-

tory motive, repeated failures to cure by amendments

previously allowed, or futility.” In re Kostin Estate, 278

Mich App at 52. In regard to undue delay, “[d]elay,

alone, does not warrant denial of a motion to amend.

However, a court may deny a motion to amend if the

delay was in bad faith or if the opposing party suffered

actual prejudice as a result.” Weymers v Khera, 454

Mich 639, 659; 563 NW2d 647 (1997) (citation omitted).

Prejudice “exists if the amendment would prevent the

opposing party from receiving a fair trial, if for example,

the opposing party would not be able to properly contest

the matter raised in the amendment because important

witnesses have died or necessary evidence has been

destroyed or lost.” Id. at 659.

The Spectrum defendants first argue that plaintiff

should not have been permitted to amend the complaint

to add the 17 allegations discussed above because the

requisite notice was not provided. However, in light of

our conclusion that these allegations were encompassed

within plaintiff’s NOI, this argument is without merit.

Next, the Spectrum defendants argue that the amend-

ment resulted in undue prejudice because it unfairly

imposed upon them “a significant expenditure of time

and money.” Again, this argument is unavailing. The

allegations throughout this lawsuit were clearly set

forth—the Spectrum defendants failed to properly care

for, evaluate, treat, and monitor Eric’s hypoglycemic

condition, including by the proper and timely adminis-

tration of the necessary glucose solutions through a

properly placed central venous line. Accordingly, the

trial court’s decision to grant leave to amend was within

the range of reasonable and principled outcomes and

did not constitute an abuse of discretion.

682 287 M

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666 [Mar

II. DOCKET NO. 290633

By direct appeal and cross-appeal, respectively, the

Spectrum defendants and the Carson City defendants

argue that the trial court erred by denying their mo-

tions for summary disposition premised on their claims

that the statement of causation in plaintiff’s NOI failed

to satisfy MCL 600.2912b. After review de novo of the

trial court’s decision to deny the motions for summary

disposition, we disagree. See Kreiner, 471 Mich at 129.

Whether an NOI complies with the statutory require-

ments is reviewed de novo as a question of law. Jackson

v Detroit Med Ctr, 278 Mich App 532, 545; 753 NW2d

635 (2008).

Among the statutorily enumerated items required to

appear in an NOI is a causation statement. MCL

600.2912b(4)(e); see, also, Tousey v Brennan, 275 Mich

App 535, 539; 739 NW2d 128 (2007). More specifically,

the plaintiff must state the “manner in which it is

alleged the breach of the standard of practice or care

was the proximate cause of the injury claimed in the

notice.” MCL 600.2912b(4)(e). To satisfy this require-

ment, the notice must contain specific allegations re-

garding the conduct of the named defendants. Roberts

(After Remand), 470 Mich at 701. It is not sufficient to

state that the defendants’ negligence caused the alleged

harm. Rather, the plaintiff must describe the manner in

which the alleged breach caused the complained of

injury. Id. at 699 n 16; see, also, Boodt, 481 Mich at 560.

In this case, plaintiff’s NOI contained the following

causation statement:

As a result of the failure of the defendants to take the

actions identified in paragraph “C” Eric Decker suffers

from cerebral palsy. He is developmentally delayed. He has

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683

difficulty walking and has limited use of his extremities. He

has articulation delays. He has sensory deficits including

being legally blind.

However, the notice must be read in its entirety. Boodt,

481 Mich at 560. We conclude that the NOI, read as a

whole and in conjunction with the underlying facts,

clearly describes the manner in which the alleged

breaches of the standard of care by the Carson City

defendants and the Spectrum defendants were the

proximate cause of Eric’s injuries.

Plaintiff’s NOI indicates that the Carson City defen-

dants delivered Eric by vacuum extraction while he was

in distress without a pediatrician present and dis-

charged him within 24 hours without being properly

evaluated and despite having an elevated bilirubin

level, hypoglycemia, and becoming reluctant to feed.

The NOI asserts that “[t]hese problems would have

been detected and corrected had Eric not been dis-

charged on the 18th after 24 hours.” Because of the

Carson City defendants’ negligent failure to detect and

correct the problems, plaintiff alleged, Eric’s medical

condition deteriorated and he became profoundly hy-

poglycemic, necessitating extensive and intensive medi-

cal intervention. A CT of his brain “indicated extensive

hypoxic ischemic injury of the posterior and possibly the

frontal cerebrum. Left [b]asal ganglia and extra-axial

hemorrhages were identified with blood over the tento-

rium, the temporal regions and the sub-arachnoid

spaces.” Plaintiff also alleged that the Spectrum defen-

dants failed to properly care for, evaluate, treat, and

monitor Eric’s profound hypoglycemia considering his

medical history, declining condition, and test results.

According to plaintiff, the Spectrum defendants’ negli-

gence caused Eric’s continued and progressive hemody-

namic and cardiopulmonary deterioration that culmi-

684 287 M

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666 [Mar

nated in a cardiopulmonary arrest and the development

of a large pneumothorax, which caused more complica-

tions that eventually required surgical repair. The NOI

continues that “Eric has been diagnosed with Cerebral

Palsy from early anoxic injury,” has sensory deficits, is

developmentally delayed, and is legally blind.

Contrary to defendants’ contention that the NOI

contains no description of how the harm to Eric was

caused, we are clearly able to discern from the NOI the

manner in which it is alleged the breaches of the

standard of practice or care proximately caused the

injuries claimed in the notice. See MCL

600.2912b(4)(e). Thus, the trial court properly denied

defendants’ motions for summary disposition premised

on this ground.

Next, the Spectrum defendants argue that the trial

court erred by denying their motion for summary

disposition as to plaintiff’s nursing malpractice claims

because plaintiff’s expert reviewed the case “in light of

a ‘national’ standard of care”; thus the claim is unsup-

ported by expert testimony. We disagree.

“ ‘In a medical malpractice case, the plaintiff bears

the burden of proving: (1) the applicable standard of

care, (2) breach of that standard by defendant, (3)

injury, and (4) proximate causation between the alleged

breach and the injury.’ ” Wiley v Henry Ford Cottage

Hosp, 257 Mich App 488, 492; 668 NW2d 402 (2003),

quoting Wischmeyer v Schanz, 449 Mich 469, 484; 536

NW2d 760 (1995). Expert testimony is required to

establish the standard of care and to demonstrate the

defendant’s alleged failure to conform to that standard.

Birmingham v Vance, 204 Mich App 418, 421; 516

NW2d 95 (1994). “A party offering the testimony of an

expert witness must demonstrate the witness’ knowl-

edge of the applicable standard of care.” Bahr v Harper-

2010] D

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685

Grace Hosps, 448 Mich 135, 141; 528 NW2d 170 (1995).

A nonlocal expert may be qualified to testify if he or she

demonstrates a familiarity with the standard of care in

an area similar to the community in which the defen-

dant practiced. Turbin v Graesser (On Remand), 214

Mich App 215, 218-219; 542 NW2d 607 (1995).

Although nurses are licensed healthcare profession-

als, they do not engage in the practice of medicine. Cox

v Flint Bd of Hosp Managers, 467 Mich 1, 20; 651 NW2d

356 (2002). Accordingly, the standards of care for gen-

eral practitioners and specialists do not apply to nurses.

Id. at 18-20. Rather, the common-law standard of care

applies to malpractice actions against nurses. Id.at21.

“[T]he applicable standard of care is the skill and care

ordinarily possessed and exercised by practitioners of

the profession in the same or similar localities.” Id.at

21-22. The standard of care required of a nurse must be

established by expert testimony. Wiley, 257 Mich App at

492. “Expert testimony is necessary to establish the

standard of care because the ordinary layperson is not

equipped by common knowledge and experience to

judge the skill and competence of the service and

determine whether it meets the standard of practice in

the community.” Id., citing Locke v Pachtman, 446 Mich

216, 223; 521 NW2d 786 (1994).

Here, contrary to the Spectrum defendants’ claims, it

is clear from plaintiff’s expert’s deposition testimony

that she applied the proper standard of care with regard

to plaintiff’s nursing malpractice claims. Defendants’

argument is premised on the fact that when plaintiff’s

expert witness, Michele Wolff, R.N., was asked whether

the standard of care she was applying to this case was

either a national or local standard, Wolff replied that it

was a “national” standard. However, the actual sub-

stance of Wolff’s lengthy testimony was that the proce-

686 287 M

ICH

666 [Mar

dures at issue here are so commonplace that the same

standard of care applied locally and nationally. In other

words, for example, no matter where a nurse is practic-

ing: (1) central lines must be monitored and evaluated

for patency, as well as utilized correctly, (2) particular-

ized care must be given to a patient on the basis of the

patient’s medical condition, (3) physician orders must

be followed, and (4) nurses must record, apprise, and

report to physicians and other providers significant

changes in a patient’s condition, as well as record such

verbal communications. Thus, plaintiff’s expert applied

the proper standard of care, which happened to be the

same locally as well as nationally. See LeBlanc v Len-

tini, 82 Mich App 5, 19; 266 NW2d 643 (1978).

Further, contrary to the Spectrum defendants’ claim,

Wolff demonstrated her familiarity with the standard of

care in an area similar to the community in which the

defendant nurses practiced. See Turbin (On Remand),

214 Mich App 217-218. Wolff testified regarding her

extensive experience working in the pediatric intensive

care unit at Children’s Hospital of Orange County,

California, dating back to at least 1986. She also had an

extensive work history as a professor at Saddleback

College in California, providing instruction in the area

of pediatrics, including PICUs. Wolff further testified

that the PICU at Children’s Hospital of Orange County

was very similar to the PICU at Butterworth Hospital,

including with regard to the availability of appropriate

resources. They were both well-staffed, well-equipped

PICUs. Although she was not questioned extensively on

the issue, Wolff testified that Grand Rapids is a medium

or moderate-sized city, fairly well off, and pretty similar

to Orange County, which is also a medium-sized city. In

light of the evidence of record, we conclude that the

trial court properly denied the Spectrum defendants’

motion for summary disposition premised on the argu-

2010] D

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687

ment that the nursing malpractice claims were unsup-

ported by expert testimony.

Finally, the Spectrum defendants argue that the trial

court should have summarily dismissed plaintiff’s nurs-

ing malpractice claims premised on the alleged failure

to chart communications with physicians. We disagree.

The Spectrum defendants argue that the nurses

who provided the contested care to Eric were not

obligated by hospital policy to document their oral

communications with physicians who were also pro-

viding care to Eric in the PICU. Therefore, the claims

set forth at ¶ 42(q), (r), (nn), (oo), and (qq) of plaintiff’s

amended complaint, which “deal[] in some way with

purported failures on the various nurses[’] parts to

chart their communications with other providers”

should be dismissed.

The specific relevant claims set forth in ¶ 42 are:

q. The RN’s in the PICU failed to assure that all

employees and physicians were at all times fully apprised of

the patient’s condition and requirements for the patient’s

care;

r. The OBGYN, Pediatricians, pediatric critical care

doctors, and the RN’s failed to keep complete, detailed, and

specific records concerning the progress, symptoms, and

complaints demonstrated by the patient, so as to apprise

treating physicians of the detailed and precise condition of

the patient;

***

nn. The PICU nurse failed to report to the physicians

the findings of decreased heart rate from the 130’s to the

100’s, decreased respiratory rate from the 30’s to teens,

and decreased oxygen saturation to the 70’s which is

charted at [3:04 a.m.].

688 287 M

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666 [Mar

oo. Based upon the current information available it

appears that the PICU nurse did not report the problems

drawing from the catheter to a physician in a timely

manner.

***

qq. If the PICU nurse did not inform a physician of the

drop in blood sugar from 90 at [4:00 a.m.] on the 20th to 48

at [5:07 a.m.] and 37 at [5:50 a.m.] this was below the

standard of care. A physician should have been informed of

those changes so that appropriate action could be taken[.]

Contrary to defendants’ argument, these allegations

clearly do not merely allege the nurses’ failure to chart

their communications with other medical providers. In

fact, they allege a failure to “apprise,” “report,” and

“inform” physicians and other providers of their find-

ings, problems, and/or changes in the patient’s condi-

tion. Thus, as plaintiff argues, the allegations pertain to

“the level of communication that should have existed

between the physicians who treated plaintiff and the

hospital staff.” Accordingly, defendants’ argument is

wholly without merit. And, to the extent that negligent

written communication, as well as negligent oral com-

munication, may be included in plaintiff’s claims, those

claims are governed by the applicable standard of

care—the standard of care for nurses.

Affirmed and remanded for further proceedings. We

do not retain jurisdiction. Costs to plaintiff as the

prevailing party. MCR 7.219(A).

2010] D

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689

PINE BLUFFS AREA PROPERTY OWNERS ASSOCIATION, INC v

DeWITT LANDING AND DOCK ASSOCIATION

Docket No. 289200. Submitted March 9, 2010, at Lansing. Decided April

1, 2010, at 9:00 a.m.

The Pine Bluffs Area Property Owners Association, Inc., brought

an action in the Roscommon Circuit Court, Michael J. Baum-

gartner, J., against the DeWitt Landing and Dock Association

(DLDA) and others, alleging that defendants were improperly

using a 20-foot by 120-foot strip of property at the west end of

Hitchcock Avenue along the shore of Higgins Lake in Gerrish

Township, Roscommon County. The Roscommon County Road

Commission was added as a third-party defendant. Plaintiff

moved for summary disposition, arguing that the property in

question, the northern 20 feet of Hitchcock Avenue, was dedi-

cated to the public for use as a road through common-law

dedication. The trial court granted partial summary disposition,

finding that questions of fact existed regarding whether the

20-foot strip constituted a road, but also ordering that the

20-foot strip could no longer be used for nontemporary mooring

of watercraft or to erect nontemporary mooring structures on

the bottom of Higgins Lake, including boat hoists and wet

anchors. While setting forth its findings of fact on the record,

the trial court indicated an apparent belief that the 20-foot strip

was part of Hitchcock Avenue pursuant to a statutory dedica-

tion and that the dedication was never removed when the plat

involved was later vacated. The trial court concluded that the

20-foot strip was accepted as a road pursuant to a resolution

passed by the road commission. The trial court determined that,

because the 20-foot strip was part of Hitchcock Avenue, the

20-foot strip was subject to the same restrictions regarding its

use as those set forth in Jacobs v Lyon Twp (After Remand), 199

Mich App 667 (1993). Some of the defendants appealed.

The Court of Appeals held:

1. There is no evidence that the road commission accepted the

streets and alleys depicted in the Kenwood plat that were dedi-

cated to the public before the plat was vacated in 1909. The

property owner who requested vacation of the Kenwood plat

690 287 M

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690 [Apr

requested vacation of the streets and alleys and the trial court

granted the request. Absent evidence to the contrary, the vacation

of the plat constitutes an affirmative act to withdraw the offer of

dedication. The trial court clearly erred by concluding that the

dedication of the streets and alleys in the Kenwood plat was not

withdrawn when the plat was vacated, before the county made any

attempt to accept the streets and alleys. Any alleged attempt by

the county to accept dedication of the streets and alleys over 25

years after the plat was vacated was not timely.

2. The evidence does not establish that the decision of the owners

of the property that contained the 20-foot strip to not convey the

20-foot strip when they sold the adjoining property in 1931 showed

their intent to offer the 20-foot strip for public use as a road.

3. The trial court erred by determining that the evidence

established that the 20-foot strip had been used as a road for at

least seven years before the 1931 sale of the adjoining property.

The trial court erred when it determined that the 20-foot strip was

a public road through a common-law dedication.

4. The evidence does not establish that the 20-foot strip is a

road pursuant to the highway-by-user statute, MCL 221.20, be-

cause there is no evidence that the road was used and worked on

by public authorities.

5. The case must be remanded to the trial court to consider the

issue whether the DLDA has an adverse possession claim or a

prescriptive easement over the 20-foot strip.

6. It was premature for the trial court to prohibit the DLDA

from placing boat hoists in the water or mooring boats. On

remand, a determination must be made regarding the DLDA’s

interest in the 20-foot strip and then the DLDA’s right to place

boat hoists or moor boats may be considered.

7. On remand, the trial court must address whether any of

defendants’ alleged activities on the 20-foot strip constitute a

nuisance.

Reversed and remanded.

1. H

IGHWAYS —

EDICATION —

UBLIC

SE —

CCEPTANCE

A valid statutory dedication of land for a public purpose requires two

elements: a recorded plat designating the areas for public use,

showing a clear intent by the plat proprietor to dedicate those

areas to public use, and acceptance by the proper public authority;

public acceptance must be timely and disclosed through a manifest

act by the public authority either formally confirming or accepting

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the dedication, or by exercising authority over the designated

areas in some of the ordinary ways of improvement or regulation.

2. H

IGHWAYS —

EDICATION —

UBLIC

SE —

CCEPTANCE

The mere certification of a plat does not constitute acceptance by the

proper public authority of all the property in the plat dedicated to

public use; acceptance by a governmental authority of a road

dedicated to the public must be by a formal resolution or infor-

mally through the expenditure of public money for repair, im-

provement, or control of the roadway, or through public use.

3. H

IGHWAYS —

EDICATION —

UBLIC

SE —

CCEPTANCE —

ITHDRAWAL OF

EDICATION

Timely acceptance by a governmental authority of land in a recorded

plat dedicated for a public purpose must take place before the offer

lapses or the property owner withdraws the offer; an offer of

dedication is withdrawn when the property owner undertakes an

affirmative act to withdraw the offer, such as using the property in

a manner that is inconsistent with public ownership; the vacation

of the plat constitutes an affirmative act to withdraw the offer of

dedication absent evidence to the contrary.

4. H

IGHWAYS —

EDICATION —

OMMON

AW —

UBLIC

A valid common-law dedication of land for a public purpose requires

an intent by the property owner to offer the land for a public use,

an acceptance of the offer by public officials and maintenance of

the land by public officials, and use by the public generally; a

common-law dedication need not be formal and dedication may

occur without a grant or even written words.

5. H

IGHWAYS —

IGHWAY-BY

-U

SER

OCTRINE

A plaintiff, to establish a public road pursuant to the highway-by-

user statute, must establish: a defined line, that the road was used

and worked on by public authorities, public travel and use for 10

consecutive years without interruption, and open, notorious, and

exclusive public use (MCL 221.20).

Carey & Jaskowski, P.L.L.C. (by Richard J. Jas-

kowski), for the Pine Bluffs Area Property Owners

Association, Inc.

Olson, Bzdok & Howard, P.C. (by Christopher M.

Bzdok and Jeffrey L. Jocks), for the DeWitt Landing and

Dock Association, Kenneth Shinsky, and Eric Wegner.

692 287 M

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Cummings, McClorey, Davis & Acho, P.L.C. (by

Haider A. Kazim and Andrew J. Brege), for the Roscom-

mon County Road Commission.

Before: O

WENS

, P.J., and S

AWYER

and O’C

ONNELL

,JJ.

O’C

ONNELL

, J. This case involves a dispute regard-

ing the use of and property rights attached to a

20-foot by 120-foot strip of property at the end of

Hitchcock Avenue along Higgins Lake in Gerrish

Township, Roscommon County. After a bench trial,

the trial court determined that the disputed strip of

property was part of Hitchcock Avenue and, there-

fore, subject to the same restrictions regarding its use

as those set forth in Jacobs v Lyon Twp (After Re-

mand), 199 Mich App 667; 502 NW2d 382 (1993). We

reverse and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

A. OVERVIEW AND DESCRIPTION OF THE SITE

The property in dispute is a 20-by-120-foot strip of

land along the shore of Higgins Lake. Both plaintiff

and the Roscommon County Road Commission claim

that Hitchcock Avenue is 50 feet wide at this point,

while defendants claim that the property in dispute is

not part of Hitchcock Avenue, so Hitchcock Avenue is

only 30 feet wide at this point. The northern 20 feet

of Hitchcock Avenue are located in Section 9 of

Township 24 North, Range 3 West, in Gerrish Town-

ship, while the southern 30 feet are located in Section

16, Township 24 North, Range 3 West in Gerrish

Township. Accordingly, the road straddles the section

line as it runs in an east-to-west direction.

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Hitchcock Avenue dead-ends near the shore of Hig-

gins Lake. In particular, the 50-foot-wide paved public

roadway ends approximately 120 feet east of the shore

of Higgins Lake. The 120-foot by 50-foot parcel of

property west of the Hitchcock Avenue terminus,

known as DeWitt’s Landing, has long been used by

property owners in the area (specifically, “back-lotters”)

and by the public as an access site for Higgins Lake.

Because the road commission did not appear to main-

tain this parcel of land, area residents created the

DeWitt Landing Association and the DeWitt Dock As-

sociation to maintain the property and a public seasonal

dock on the site.

Photographs of the site taken in 2006 indicate that

Hitchcock Avenue is paved to approximately the

eastern edge of DeWitt’s Landing. On approximately

the southern half of the property (corresponding to

the portion of the property in Township Section 16),

a paved cement boat ramp leads to the water.

The

northern portion of the property (corresponding to

the portion of the property in Township Section 9)

consists of a mowed grassy area, a concrete retaining

wall and patio, and a beach. In particular, a mowed

grassy area is located on the easternmost two-thirds

of the northern portion of the property. The mowed

area ends at a low concrete retaining wall, located

approximately two-thirds of the way down the strip of

property toward the water. Past the retaining wall is

a paved area, that is wide enough for two picnic

Historically, the membership of and actions undertaken by these

organizations were largely interchangeable, and eventually the DeWitt

Landing Association and the DeWitt Dock Association merged to form

the DeWitt Landing and Dock Association (DLDA). Accordingly, we will

refer to these three organizations as the DLDA throughout this opinion.

According to one area resident, vehicles only traveled west of the

guardrail when using the boat ramp to launch or pick up boats.

694 287 M

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tables, and a sandy beach leading to the water. At the

northern edge of the property, a long dock stretches

out into the water. Fences stretch to the water line to

both the north and south of the property.

The photographs also show that a vehicle guardrail is

located at the eastern edge of DeWitt’s Landing,

stretching along the northern half of the eastern bound-

ary of the property. The guardrail is approximately 20

feet long, and it separates the roadway from the grassy

area to the west. A “Road Ends” sign and a red

diamond-shaped sign are posted immediately behind

the guardrail. Another photograph depicts a sign posted

by the DLDA on the property, which reads in part, “No

tax dollars are spent on upkeep of this road end. Our

volunteer organization keeps the dock, beach, ramp and

grassy hill in a safe and sanitary condition for the public

to enjoy.” (Emphasis in original.)

B. THE 30-FOOT STRIP

The southern 30 feet of DeWitt’s Landing (the 30-

foot strip) is located in Section 16 of Gerrish Township

and is part of the platted community of Pine Bluffs. The

Pine Bluffs plat indicates that the northernmost 30 feet

of the platted property, stretching approximately 400

feet from Higgins Lake to Pine Bluffs Road, was origi-

nally identified as “North Street.” The westernmost

120 feet of “North Street” corresponds to the 30-foot

strip. This plat dedicated the streets shown on the plat

“to the use of the public.”

Although the 30-foot strip was never used as a road

per se, it has been used for some time to provide access

for vehicles moving boats in and out of the water. Over

half a century ago, DLDA members installed a cement

boat ramp on the 30-foot strip, and over the years they

have continued to maintain the boat ramp on behalf of

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the public.

Apparently both DLDA members and the

public have used this area consistently as a lake access

point.

In separate litigation in the late 1990s, the Roscom-

mon Circuit Court determined that the 30-foot strip

was a platted road dedicated to the public and, accord-

ingly, it limited certain shore activities on the 30-foot

strip, precluded the erection of private docks, boat

hoists, and other anchorage devices, and permitted the

erection and maintenance of one common public dock.

The use of the 30-foot strip is not in dispute in this case.

C. PROPERTY TRANSFERS INVOLVING THE 20-FOOT STRIP

Specifically, this case concerns the use and ownership

of the northern 20-by-120 feet of DeWitt’s Landing (the

20-foot strip). All parties acknowledge that this prop-

erty is not located within the plat of Pine Bluffs, but is

adjacent to the northern boundary of the plat. Unlike

the 30-foot strip, which appears to consist primarily of

the boat ramp, the 20-foot strip functions more as a

small park. The underlying dispute in this case con-

cerns whether this 20-foot strip is a public road and,

therefore, whether the use restrictions that apply to the

30-foot strip also apply to the 20-foot strip.

At the turn of the 20th century, the land north of the

Pine Bluffs plat, including the 20-foot strip, was also

platted. This plat, known as the Kenwood plat, was

dedicated and registered in 1901.

The platters designed

Several members of the DLDA maintained that they did not recall the

county road commission or any other governmental entity performing

roadwork or maintenance on the 30-foot strip. Instead, the DLDA

performed all maintenance on the 30-foot strip, including maintenance of

the public boat ramp, with the consent and permission of the county road

commission.

The plat consisted of the following land:

696 287 M

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the Kenwood plat to consist of 18 blocks, arranged in

three groupings (on Lots 2, 3, and 4 of Section 9) of six

blocks each along the shore of Higgins Lake. The plat

indicates that blocks one through six were located in

Lot 2, blocks seven through 12 were located in Lot 3,

and block A

and blocks 14 through 18 were located in

Lot 4. Each block in Lots 2 and 4 contained 80 lots,

arranged in two rows of 40 lots each.

The blocks in Lot

3 contained 82 lots, arranged in two rows of 41 lots

each. Each lot measured approximately 32 by 65 feet.

None of the lots touched the water. Instead, a large road

known as Chicago Boulevard was designated to run

along the shore of Higgins Lake for the length of the

plat separating the lots from the lake. Platted roads

separated each grouping of blocks, and each block was

separated by alleys that ran parallel to the shore of

Higgins Lake. Another alley of undetermined width

stretched along the southern edge of the plat to Chicago

Boulevard on the lakeshore. At the time, the northern

20 feet of Hitchcock Avenue was part of this plat, and

the westernmost portion of this alley appears to corre-

Comprising Lots No. (2) two (3) three and four (4) of Section

nine (9) Town 24N R3 West Roscommon Co Mich. Commencing at

a point marked thus ƒ at the meander post on the east bank of

Higgins Lake on Section Line Between Section Nine and Sixteen.

Then running East on Section Line 880 to West

/8 Post Bet. Sec 9

& 16 marked thus. ƒThence north on West

/8 line Sec Nine

3996.96 feet to NW

/8 Post Sec nine marked Thus ƒ, thence west

on north

/8 line 1255 feet to meander post marked thus. ƒ Thence

southerly along the meander line Sec. Nine 4007 ft to the place of

beginning.

There is no Block 13 on the plat. Instead, what would sequentially be

labeled “Blk 13” is instead labeled “Blk A.”

Although these individual parcels are not called “lots” on the plat, but

are simply numbered, they are referred to as “lots” in subsequent deeds.

We will use the term “lots,” with a lowercase “l,” to refer to these smaller

parcels, and to distinguish these parcels from the larger Lots 2, 3, and 4.

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spond with the 20-foot strip.

The plat specified that

“the Streets as shown on said pl[at] are hereby dedi-

cated to the use of the Public.”

Between 1903 and 1909, Myrtle E. Hellen purchased

either all or a substantial portion of the property in the

Kenwood plat. After acquiring this property, Hellen

petitioned the circuit court to vacate the Kenwood plat.

The portion of Hellen’s petition for vacation included in

the lower court record indicates that she sought vaca-

tion of the plat, in part, because the plat was badly

conceived. According to the petition, the widths of the

streets and alleys were not clearly laid out and, appar-

ently, the property had never been marked to show the

layout of the plat, making it impossible for Hellen to

resell the property and artificially increasing the tax-

able value of her land. Finally, Hellen requested “that

the court may vacate the said plat and its lots, blocks,

streets, and alleys....”TheRoscommon Circuit Court,

recognizing that there appeared to be no opposition to

Hellen’s petition, entered an order vacating the Ken-

wood plat on September 9, 1909, which was recorded by

the register of deeds on August 13, 1912.

In its initial motion for summary disposition, plain-

tiff submitted an affidavit from the owner of a local title

search company, who claimed that according to a title

search that she conducted, Hellen never conveyed the

20-foot strip of land at the southern edge of her prop-

erty (which included the 20-foot strip at issue in this

case) when she sold her land years after the plat was

vacated. However, both parties later agreed that the

information provided in this affidavit was incorrect,

because Hellen did include the 20 feet at the southern

edge of her property in her subsequent sale of this land.

Although the plat is unclear regarding the exact width of the alleys,

the parties agree that the alley in question is 15 feet in width.

698 287 M

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690 [Apr

Further, the parties submitted deeds detailing the

subsequent property transfers that included the 20-foot

strip. On February 17, 1922, Hellen sold to William J.

Tenney a 400-square-foot parcel of property that in-

cluded the 20-foot strip. On April 28, 1924, Tenney sold

a portion of the property, including the 20-foot strip, to

Charles H. DeWaele. On May 19, 1924, DeWaele sold a

portion of the property, including the 20-foot strip, to

Charles T. Hayden. On July 4, 1924, Hayden sold his

property to Osian and Hulda Anderson, with the guar-

antee that the property was free from encumbrances.

The property deeded to the Andersons included the

20-foot strip.

In February 1931, the Andersons sold some of their

property to Francis and Faith Ross. The parcel that the

Andersons sold to the Rosses excluded the 20-foot strip

in question.

The Andersons continued to own this

The deed described the property owned by the Andersons as follows:

Commencing at the meander post between sections nine and

sixteen, township twenty-four north, range three (3) west, thence

east on section line four hundred feet, thence north at right angles

two hundred and fifty feet, thence westerly and parallel with said

section line to the shore of Higgins Lake, thence southerly along

the shore of Higgins Lake to the place of beginning, being part of

Lot (4) four, section (9) nine, township twenty-four (24) north,

range three (3) west.

The parcel that the Rosses acquired in this transaction is described as

follows:

Commencing at a point on the shore of Higgins Lake twenty

(20) feet north of the meander post between Section Nine (9) and

Sixteen (16) from place of beginning, thence East four hundred

(400) feet thence north seventy three and one half (73

/2) feet,

thence west about four hundred (400) feet to the shore of Higgins

Lake, thence southerly about seventy three and one half (73

/2)

feet along the shore of Higgins Lake to a line drawn east and west

through the point of beginning, thence east along this line to point

of beginning, except the following described property, commencing

twenty (20) feet north and two hundred (200) feet east of the

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strip, along with a 156

-foot parcel north of the Ross

parcel and the land described in the exception to the

1931 deed. No subsequent transfers of the 20-foot strip

were discovered, and the Andersons are the last owners

of record of the strip.

The Rosses owned the property they purchased from

the Andersons for the rest of their lives.

In 1973,

Francis and Faith Ross created a trust, in which Francis

was trustee, and transferred ownership of their prop-

erty to the trust. In 1995, the property was sold to Paul

and Nancy Rose. In July 2000, the Roses sold approxi-

mately half their property to Thomas and Claudia

McLellan. None of these property transfers included

the 20-foot strip.

D. PUBLIC DEDICATION OF HITCHCOCK AVENUE

Although the Kenwood plat dedicated all the streets

and alleys depicted therein to the use of the public, the

meander point between Sections Nine (9) and Sixteen (16) for a

point of beginning, thence east thirty (30) feet, thence north

seventy-three and one half (73

/2) feet, thence west thirty (30) feet,

thence south seventy-three and one half (73

/2) feet to place of

beginning. The land hereby conveyed is seventy three and one half

feet in width throughout and is part of Lot Four (4), Section Nine

(9), Township Twenty-four (24) North Range Three (3) West.

The deed parties of the second part, their heirs and assigns

forever, shall have in common with first party, his heirs or assigns

forever, the use for road purposes of the land excepted by the

conveyance.

The record does not indicate whether the Andersons later sold the

156

/2-foot parcel. Apparently the Andersons’ heirs have not been iden-

tified, and they were never contacted regarding, nor are they involved in,

this litigation.

It appears that at some point the Rosses bought an additional 73

feet to the north of their lot, making the total width of their lot 147 feet.

Regardless, none of the descriptions of their property included in the

lower court record include the 20-foot strip.

700 287 M

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690 [Apr

parties provided no evidence that the county accepted

this dedication before the Kenwood plat was vacated.

In fact, the parties provide no evidence that the

county road commission took formal steps to accept

dedications of any streets and alleys in the county

before the 1930s. Plaintiff submitted copies of county

maps from 1931 through the present that depicted

Hitchcock Avenue as going to the edge of Higgins

Lake, although a road commission employee admitted

that the maps did not indicate the widths of the roads

depicted. Plaintiff also submitted the minutes of an

April 2, 1937, meeting of the Roscommon County

Road Commission indicating that the county road

commission had resolved to take over maintenance of

all dedicated streets and alleys in all recorded plats in

the county and a later resolution (apparently from

1953) designating these streets and alleys as county

roads. Although the minutes of the 1937 meeting do

not provide a list of the recorded plats in question, a

handwritten note from this time written by a county

official includes Kenwood among the list of recorded

plats, even though the plat had been vacated for over

25 years at this point. A 1953 road commission

resolution reaffirming under 1951 PA 51 the commis-

sion’s prior takeover of roads pursuant to the McNitt

act, 1931 PA 130, repealed by 1951 PA 51, § 21, did

not include the plat of Kenwood among the recorded

plats whose streets and alleys were taken over as

county roads. The plat of Pine Bluffs was included.

At its April 16, 1940, meeting, the road commission

resolved to incorporate particular metes-and-bound

roads into the county road system. The roads listed for

incorporation into the county road system included the

road located on the north side of Section 16, but did not

include a road located on the south side of Section 9.

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In its answer to a discovery request, the road

commission admitted that although it had histori-

cally considered the 20-foot strip to be part of Hitch-

cock Avenue, it could not find any information in its

records indicating that there was “any dedication or

conveyance which created this 20 [foot] portion of the

road.” Instead, the road commission averred that

because there was continuous public use of the 20-

foot strip for nearly a century, the 20-foot strip would

be a road pursuant to the highway-by-user doctrine.

At the trial in this case, Gloria Burns, a long-time

employee and administrator of the Roscommon

County Road Commission, testified that although it

was the road commission’s position that it had juris-

diction over the 20-foot strip and some maps depicted

a part of Hitchcock Avenue as falling north of the

section line, the road commission was unable to find

any documentation confirming that it had accepted

and certified the 20-foot strip as part of Hitchcock

Avenue. Burns explained that “McNitt roads were

accepted listing everything by plat” and that because

mapmakers drawing a road on a section line tended to

draw the road down the middle of a section line, the

fact that part of Hitchcock Avenue was depicted as

being north of the section line at the water’s edge did

not mean anything.

When asked if the road commission had ever per-

formed maintenance on either the 20-foot or the 30-foot

strips, Burns replied:

Not that we can find in our records and not to anyone

that I have asked. In fact, I asked someone just yesterday

when I went to visit the site, Clint Stauffer, worked for the

road commission for thirty-nine years, hiring in about

sometime in the Fifties, I thought maybe he would know if

we put that ramp in or we did some type of work, you know,

702 287 M

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690 [Apr

on the other side. He said we have never done anything

down there in any position that he has been in, nor has the

current foreman.

Burns also acknowledged that a 1957 road commission

map labeled the land at the end of Hitchcock Avenue

“DeWitt Landing.” Finally, she acknowledged that the

20-foot strip never contained a paved or dirt area that

would permit vehicular access to the lake.

E. TESTIMONY OF MYRTLE MOORE

Myrtle Rydell Moore, an elderly area resident, dis-

cussed her family’s use of DeWitt’s Landing in the

1920s. Moore, who was born and raised near DeWitt’s

Landing, would accompany her family to DeWitt’s

Landing as a young child, where they would swim,

recreate, and have parties and picnics. Moore explained

that her family would usually recreate at an area along

the lakeshore just to the south of DeWitt’s Landing,

along the beach in front of the cottages that were later

built at the northern edge of the Pine Bluffs plat. Moore

indicated that there was a “path” to the water that her

family used to get to DeWitt’s Landing, although she

did not indicate where this path was located or whether

any part of it traversed the 20-foot strip. She believed

that others must have used the path to the water as

well, because the path was “well-worn.” Her impression

was that the property at DeWitt’s Landing was “[a]vail-

able for use by anyone.”

Moore claimed that the area became known as “De-

Witt’s Landing” after the DeWitts built their house on

the property immediately to the south of the 30-foot

strip, but she could not remember when this occurred.

She estimated that people began referring to the site as

“DeWitt’s Landing” in the late 1930s or early 1940s.

According to Moore, the DeWitts often would maintain

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the trail to the lake, keeping it free from snow in the

winter and maintaining the path throughout the year

so that “back-lot” neighbors could reach the lake.

Moore claimed that Mr. DeWitt “did whatever he could

to encourage” his neighbors to use DeWitt’s Landing.

Moore testified that she would see cars drive down to

the lake to unload boats into the water. She also saw

others use the path in question to take trucks onto the

lake to cut ice during the winter. Moore and her family

would not picnic in the area where boats were launched

into the water, but “to the side.” Moore did not believe

that the road commission ever maintained or plowed

the lake access point, stating instead that she believed

that the road commission “only went as far as where

the people drove in to their house or garage.” Moore

was never asked, and never indicated, whether the path

and the vehicular access to the lake were on the 20-foot

strip or on the 30-foot strip.

F. HISTORICAL USE OF DEWITT’S LANDING

Although Moore testified regarding the historical use

of DeWitt’s Landing as a recreational area and lake

access point, it appears that by the 1940s and 1950s,

DeWitt’s Landing was overgrown and an “eyesore.”

Moore discussed the contents of four photographs from the 1920s

depicting her and her family recreating near DeWitt’s Landing. In one of

these photographs, a dirt road can be seen in the distance, and Moore

claimed that this was the path or trail that she and her family used to

access the lakeshore. The road depicted in the photograph does not

appear to be within 120 feet of the water. Instead, it appears to be further

back, where the paved portion of Hitchcock Avenue is located.

Plaintiff claims that photographs from the 1940s depict a trail over

the 20-foot strip to the lake. The trial court never discussed these

photographs. These photographs depict a scrubby, sandy area roughly

where the beach on the 20-foot strip is now located. It is not apparent

from these photographs that the sandy area depicted is, in fact, a road.

704 287 M

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Defendant Victor Teichman explained that when his

family first came to the area in 1948, the property

consisted of a

gully wash-out with tin cans and junk and brush that

people had thrown in there. And it was not very easy to get

down to the lake even on foot and some people were

beginning to get little boats, like a little rowboat or maybe

a small aluminum boat or something. And they would try it

back down there to unload their boat and have a problem

getting out and it was a bad situation.

According to its members, apparently the DeWitt

Landing Association, the precursor to the DLDA, was

formed at some point in the late 1950s or early 1960s,

when Roy DeWitt, who owned the property immedi-

ately to the south of DeWitt’s Landing, obtained

permission from the county road commission to im-

prove the road end. DeWitt contacted a number of

backlot owners to form the DeWitt Landing Associa-

tion (later the DLDA) and to help care for DeWitt’s

Landing. The association members paid for and con-

structed the cement terrace/retaining wall and flat

patio for picnic tables, planted and maintained the

grassy area for sunbathing, and filled in the area

along the lake with sand for use as a beach. The

association members also paid for and installed the

cement drive leading to the lake.

For years, both

DeWitt and the Rosses had no objection to DLDA

members using the property. The Rosses were aware of

and consented to DLDA’s use of the 20-foot strip for

picnicking, lounging, sunbathing, recreating, and over-

night boat storage. In fact, on one occasion, Francis

Photographs that appear to be from the early 1960s show a cement

truck and depict local men (not construction workers) laying cement and

digging out sod on the boat ramp. Apparently this ramp replaced an

earlier boat ramp on the site.

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Ross even agreed to move his fence when it was thought

that the fence was encroaching on the right-of-way.

Apparently a barrier was first installed on Hitchcock

Avenue at the eastern edge of the 20-foot strip in 1960.

Earlier photographs of the site show a series of posts

indicating a road end and blocking further vehicular

traffic, while later pictures depict a guardrail. The

blacktop ended at the guardrail. Although it is undis-

puted that the area of Hitchcock Avenue east of the

guardrail is a 50-foot wide blacktop road used by the

public and maintained by the county road commission,

the parties have not identified any evidence that the

road commission ever took any steps to maintain the

20-foot strip. Instead, many DLDA members confirmed

that the 20-foot strip was never used or maintained as

a road, but instead had been used for over 50 years by

DLDA members and the public for lounging, sunbath-

ing, and recreating. The DLDA maintained picnic tables

and a bulletin board on the site, and members helped

mow, clean, and maintain the 20-foot strip. DLDA

members affirmatively testified that for over 50 years,

they had never seen the county road commission, or any

other governmental entity, maintain or otherwise per-

form any work on the 20-foot strip.

Every year, DLDA members would install a seasonal

dock on the 20-foot wide strip that extended into

Higgins Lake. Several DLDA members used the sea-

sonal dock at the end of the 20-foot strip to dock and

moor boats overnight; for some, this use stretched as far

back as the 1940s.

DLDA members also used the

public boat ramp at the end of the 30-foot strip for

access to Higgins Lake.

Apparently DLDA members conducted a lottery to determine which

members could moor boats at the dock.

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DLDA member Peggy McKibbin affirmed that her

family had used the beach, dock, and bottomlands of

DeWitt’s Landing since 1941 and provided photographs

as evidence. The photographs, dating from 1941

through 1991, show a dock and beach on the property.

Victor Teichman, who testified regarding the depictions

in the photographs, explained that a fence marked the

property line separating the 20-foot strip from the

Rosses’ property, but there was no road on the property.

Photographs from the late 1960s through the early

1990s show a paved boat ramp on what appears to be

the 30-foot strip, and barriers blocking vehicular access

to the 20-foot strip. The 20-foot strip contained a grassy

area and, closer to the water, a cement retaining wall, a

paved area for picnic tables, and a small beach. A dock

then extended into the water, where boats were moored.

Additional photographs submitted at trial also reflect

this use of the property. None of the photographs

submitted show the 20-foot strip being used as a road.

Beginning in the 1980s, the properties on the north

and south sides of DeWitt’s Landing began to change

hands, and new owners began challenging the DLDA’s

historic use of the property. When a subsequent owner

of the DeWitt property sought to have the road com-

mission abandon the western 120 feet of Hitchcock

Avenue in March 1987, several back-lot owners wrote

letters opposing the proposed abandonment, noting

that the general public regularly used the road-end to

reach Higgins Lake. The county road commission voted

against abandoning the road.

A few months later, the same landowner informed

the road commission that picnic tables and a bulletin

board, historically placed by DLDA members on the

20-foot strip, were located in the right-of-way. The road

commission acknowledged these concerns and promised

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to “review this site in the near future.” However, there

is no evidence that the road commission actually ad-

dressed or investigated this situation, and photographs

show a bulletin board and picnic tables on the property

as late as 2006. A 1991 flyer from the DLDA, which had

been posted at DeWitt’s Landing, indicated that the

road commission provided no assistance in maintaining

the property.

G. THE MCLELLANS’ OBJECTIONS REGARDING DEWITT’S LANDING

Thomas and Claudia McLellan currently own the

property directly to the north of the 20-foot strip.

Apparently the McLellans saw the property once before

they purchased it, in November 1999, and there were no

boats, hoists, or picnic tables on the 20-foot strip at the

time.

Thomas McLellan, who testified at the bench trial in

this case, did not appear to have any objection to most

of the historical activities that took place on the 20-foot

strip. He explained that the property had a “very long

dock,” and that individuals used the property “as a

park, basically, swimming, lot of activities that weren’t

objectionable.” McLellan’s primary concern appeared to

be with largely illegal activities that he claimed were

occurring on the property, such as public urination and

public intoxication. McLellan did not indicate that

defendants or other DLDA members ever committed

The flyer states:

The Dewitt Landing Association, a group of 30 families, con-

tribute money and volunteer work to provide maintenance of the

grassy knoll, beach, dock and picnic tables for the public to enjoy.

There is no maintenance assistance from any governmental orga-

nization and because litter of any kind left on the beach or road

surface will wash into the lake with rain water and damage the

delicate balance of nature in the lake water...wemust be very

diligent.

708 287 M

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the offensive acts in question. McLellan also expressed

concerns that children were accessing the lake at the

20-foot strip in order to swim unsupervised. McLellan

later admitted that the activities on the property that

he was concerned about were illegal, so precluding the

DLDA from maintaining the area would not stop these

activities from occurring.

H. PROCEDURAL HISTORY

The McLellans created the Pine Bluffs Area Property

Owners Association, Inc.,

which was incorporated as a

nonprofit entity on January 19, 2006. Thomas and

Claudia McLellan were listed as the only incorporators.

Plaintiff, the Pine Bluffs Area Property Owners Asso-

ciation, Inc., then filed the complaint in this case,

alleging that defendants were acting outside the scope

of the common-law dedication dedicating the 20-foot

strip as a public road and requesting that the trial court

declare these activities to be a nuisance.

Plaintiff moved for summary disposition, arguing

that the northern 20 feet of Hitchcock Avenue was

dedicated to the public for use as a road through

common-law dedication and, therefore, could not be

used to erect permanent mooring structures in Higgins

Lake, for nonincidental and nontemporary docking, and

for recreational purposes. The trial court granted par-

tial summary disposition to plaintiff, finding that ques-

tions of fact existed regarding whether the 20-foot strip

constituted a road, but it also ordered that the 20-foot

strip of land could no longer be used for nontemporary

The McLellans’ property is the land to the north of and adjacent to

the 20-foot strip. As discussed earlier, this property is part of the former

Kenwood plat, which was vacated in 1909. The property is not part of the

plat of Pine Bluffs.

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mooring of watercraft or to erect nontemporary moor-

ing structures on the bottom of Higgins Lake, including

boat hoists and wet anchors. This ruling was apparently

based on the trial court’s determination that the prop-

erty was functioning as a de facto marina without a

permit, in violation of Michigan Department of Envi-

ronmental Quality (MDEQ) regulations. The trial court

also ruled that only one nonexclusive dock could be

erected within the entire 50-foot section of lake front-

age on Hitchcock Avenue, meaning that a dock could be

erected either on the 30-foot strip or on the 20-foot

strip, but not on both.

After the August 2008 bench trial, the trial court set

forth its findings of fact on the record. In its statements,

the trial court indicated an apparent belief that the

20-foot strip was part of Hitchcock Avenue pursuant to

a statutory dedication. The trial court, noting that the

roads set forth in the Kenwood plat were dedicated to

the public, reasoned that the dedication was never

removed when the plat was later vacated. The court

then stated that Hellen had not excluded the southern-

most 20 feet of her property when she sold her property

after the plat was vacated, confirming that she had not

intended to remove the dedication of the streets and

alleys to the public in the Kenwood plat when she

sought vacation of the plat in 1909. When both parties

pointed out that Hellen had sold the southernmost 20

feet of her property as part of a larger conveyance and

that the Andersons were the first landowners who

chose not to include in the deed describing the property

conveyed the 20-foot strip when selling their property,

the trial court concluded, “Well, the portion dedicated

At this time, a cross-claim that defendants had filed against the

MDEQ regarding the use of the dock on the 20-foot strip as a “marina”

without a proper permit was dismissed as moot.

710 287 M

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690 [Apr

in Kenwood to the public was never sold out by the

Andersons, and if that doesn’t indicate that they knew

there was a road that was used for the public, I don’t

know what does.” The trial court concluded that this

20-foot strip was then accepted as a road pursuant to a

McNitt act resolution and that Jacobs applied to the

scope of the dedication.

In a written judgment, the trial court ruled that the

contested 20-foot strip was a public road established by

common-law dedication and ordered that the 20-foot

strip could no longer be used for recreational purposes,

including “sunbathing, lounging, picnicking, and other

activities that are non-incidental to the use of the

water’s surface of Higgins Lake.” The court also pro-

hibited nontemporary mooring of watercraft and the

erection of nontemporary mooring structures, including

boat hoists and wet anchors, on the bottomlands of

Higgins Lake. Although in its oral findings from the

bench the trial court had indicated a belief that defen-

dants’ activities were a nuisance, it did not address this

issue in the written judgment.

II. STATUS OF THE 20-FOOT STRIP

On appeal, defendants challenge the trial court’s

determination that the 20-foot strip is part of Hitchcock

Avenue, arguing that particular findings of fact by the

trial court were clearly erroneous and that the trial

court’s conclusion that the 20-foot strip was part of

Hitchcock Avenue is incorrect. We agree. We review a

trial court’s findings of fact for clear error, MCR

2.613(C), and questions of law de novo, Ross v Auto

Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008).

In its judgment, the trial court indicated that the

20-foot strip was a public road pursuant to a common-

law dedication. However, the trial court’s fact-finding

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does not clearly indicate how or why it came to this

particular conclusion, and the trial court did not explic-

itly identify which facts supported its determination

that a common-law dedication occurred. In its fact-

finding at the close of the bench trial, the trial court

determined that although the plat of Kenwood was

vacated, the plat indicated that the streets depicted

therein were dedicated to the use of the public. The

court also acknowledged that the Pine Bluffs plat had

dedicated the northern 30 feet of the plat toward the

formation of what would become Hitchcock Avenue,

and this 30-foot dedicated road included both the 30-

foot strip of DeWitt’s Landing and the southern 30 feet

of Hitchcock Avenue. The trial court recognized that

both the northern 20 feet of Hitchcock Avenue and the

20-foot strip were not part of a plat, but it also appeared

to conclude that because this property was once part of

a plat and had not been deeded out since then, both the

20-foot strip and the northern 20 feet of Hitchcock

Avenue must have been dedicated as a road, and the

dedication must never have been removed.

In particular, although the trial court ruled that the

20-foot strip was a public road pursuant to a common-

law dedication, throughout its fact-finding it main-

tained that the 20-foot strip was a public road because

the dedication of the Kenwood plat was never rescinded.

Such reasoning appears to be more in keeping with a

rationale that the 20-foot strip was part of Hitchcock

Avenue pursuant to a statutory dedication. Finally, the

parties raise as an issue whether the 20-foot strip could

be considered a public road pursuant to the highway-

by-user doctrine.

The somewhat disjointed reasoning presented by the

trial court, as well as the parties’ desire to address

whether the property in question is a public road

712 287 M

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690 [Apr

pursuant to different theories of dedication and accep-

tance, reveals an important, fundamental point: proper

adjudication of a dispute regarding whether a public

road exists requires consideration of all three recog-

nized means of creating a public road, namely, a statu-

tory dedication and acceptance, a common-law dedica-

tion and acceptance, and recognition of a public road

pursuant to the highway-by-user doctrine. In Beulah

Hoagland Appleton Qualified Personal Residence Trust

v Emmet Co Rd Comm, 236 Mich App 546, 554-555; 600

NW2d 698 (1999), this Court discussed these three

methods under which property may become part of a

public road:

For a road to become public property, there generally

must be a statutory dedication and an acceptance on behalf

of the public, a common-law dedication and acceptance, or

a finding of highway by public user. Village of Bellaire v

Pankop, 37 Mich App 50, 54-55; 194 NW2d 379 (1971). For

a statutory dedication under the Land Division Act, MCL

560.101 et seq.; MSA 26.430(101) et seq., the well-

established rule is that two elements are required: a

recorded plat designating the areas for public use, evidenc-

ing a clear intent by the plat proprietor to dedicate those

areas to public use, and acceptance by the proper public

authority. Kraus v Dep’t of Commerce, 451 Mich 420, 424;

547 NW2d 870 (1996). Public acceptance must be timely

and must be disclosed through a manifest act by the public

authority either formally confirming or accepting the dedi-

cation and ordering the opening of the street, or by

exercising authority over it, in some of the ordinary ways of

improvement or regulation. Id. Similarly, a valid common-

law dedication of land for a public purpose requires (1)

intent by the property owners to offer the land for public

use, (2) an acceptance of the offer by the public officials and

maintenance of the road by public officials, and (3) use by

the public generally. Bain v Fry, 352 Mich 299, 305; 89

NW2d 485 (1958); Boone v Antrim Co Bd of Rd Comm’rs,

177 Mich App 688, 693; 442 NW2d 725 (1989). Finally,

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establishing a public highway pursuant to the highway by

user statute, MCL 221.20; MSA 9.21, requires (1) a defined

line, (2) that the road was used and worked on by public

authorities, (3) public travel and use for ten consecutive

years without interruption, and (4) open, notorious, and

exclusive public use. Bain, supra.

We will address each method of creation of a public road

in turn, as well as whether the evidence supports a

ruling that the 20-foot strip was a public road.

A. STATUTORY DEDICATION

In Kraus v Dep’t of Commerce, 451 Mich 420, 423;

547 NW2d 870 (1996), our Supreme Court considered

a circumstance similar to that found in this case,

addressing whether unimproved roads platted along

the shore of Higgins Lake and dedicated to public use

in the first decade of the last century had been

accepted by the public. The Kraus Court identified

the general, long-accepted rule for valid dedication of

land in this state:

In cases like these, the well-established rule is that a

valid dedication of land for a public purpose requires two

elements: a recorded plat designating the areas for public

use, evidencing a clear intent by the plat proprietor to

dedicate those areas to public use, and acceptance by the

proper public authority. LeevLake, 14 Mich 11, 18 (1865).

Public acceptance must be timely, Wayne Co v Miller,31

Mich 447, 448-449 (1875), and must be disclosed through a

manifest act by the public authority “either formally con-

firming or accepting the dedication, and ordering the

opening of such street, or by exercising authority over it, in

some of the ordinary ways of improvement or regulation.”

Tillman v People, 12 Mich 401, 405 (1864). In Miller, this

Court explained that the requirement of public acceptance

by a manifest act, whether formally or informally, was

necessary to prevent the public from becoming responsible

714 287 M

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690 [Apr

for land that it did not want or need, and to prevent land

from becoming waste property, owned or developed by no

one. Id. at 448. [Id. at 424.]

“However, the mere certification of a plat does not

constitute acceptance of all the dedicated property.”

Marx v Dep’t of Commerce, 220 Mich App 66, 74; 558

NW2d 460 (1996). Instead, the governmental authority

must accept the publicly dedicated parcel of land in

question, either by a formal resolution or informally

through “ ‘the expenditure of public money for repair,

improvement and control of the roadway’ ” or through

public use. Id., quoting Eyde Bros Dev Co v Roscommon

Co Bd of Rd Comm’rs, 161 Mich App 654, 664; 411

NW2d 814 (1987), abrogated in part on other grounds

by Kraus v Gerrish Twp, 205 Mich App 25, 46-47 (1994).

Further, timely acceptance of dedicated lands in a

plat requires that the acceptance of the dedication

“must take place before the offer lapses or before the

property owner withdraws the offer.” Marx, 220 Mich

App at 78. “As long as a plat proprietor or his successors

take no steps to withdraw an offer to dedicate land for

public use, the offer is treated as continuing.” Id. at 79.

However, when the property owner undertakes an

affirmative act to withdraw the offer, such as using the

property in a manner that is inconsistent with public

ownership, the offer of dedication is withdrawn. Id. at

80.

The Kenwood plat was dedicated in 1901 and vacated

by court order in 1909. The parties provided no evi-

dence that the county ever attempted to accept the

dedication of the streets and alleys located in the

Kenwood plat before its vacation, either by formal

resolution, by expending money on the property, or by

indicating that the public used the streets and alleys

(including the 20-foot strip) for their intended purpose.

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In fact, the parties provide no evidence regarding any

use of the property until the 1920s, and a county road

commission employee admitted that after a search of

road commission records, she could not find any records

of any dedication or conveyance that included the

20-foot strip as part of Hitchcock Avenue.

Instead, the plat was vacated before any acceptance

of the dedication therein occurred. Further, Hellen, who

owned most or all of the property in the plat at the time

of its vacation, specifically requested in her petition

that the “lots, blocks, streets, and alleys” in the plat be

vacated, apparently because the layout of the plat made

the property difficult to resell and affected her property

taxes. Although the dedication of the public land in the

Kenwood plat was not formally withdrawn through a

separate court action, Hellen specifically requested the

vacation of streets and alleys in the plat in her petition

for vacation, and the trial court granted her request,

vacating the plat in its entirety. In the absence of any

evidence to the contrary, the vacation of the plat con-

stitutes an affirmative act to withdraw the offer of

dedication. See Olsen v Village of Grand Beach, 282

Mich 364, 368-369; 276 NW 481 (1937) (recognizing the

vacation of a plat as equivalent of the withdrawal of a

dedication).

Accordingly, the evidence presented at trial leads to

only one conclusion; that the dedication of the streets

and alleys in the Kenwood plat was withdrawn when

the plat was vacated, before the county made any

attempt to accept these streets and alleys. The trial

court’s conclusion to the contrary was clearly errone-

ous.

Further, instead of treating the vacation of the Ken-

wood plat as a withdrawal of the dedication before

acceptance, the trial court appears to conclude that the

716 287 M

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county formally accepted jurisdiction over the 20-foot

strip when it passed McNitt act resolutions in the

1930s, which were designed to incorporate township

roads and streets and alleys in dedicated plats into the

county road system. However, a general McNitt act

resolution does not constitute acceptance of a dedicated

road not specifically named in the resolution; instead, a

McNitt act resolution must expressly identify the plat-

ted road in dispute or the recorded plat in which that

road was dedicated “to effect manifest acceptance of the

offer to dedicate the road to public use.” Kraus, 451

Mich at 430. And, although road commission resolu-

tions accepting jurisdiction over roads in certain plats

and certain county roads were presented as evidence,

the trial court never determined that the 20-foot strip

was specifically included among the road sections over

which the county road commission asserted jurisdic-

tion. In fact, the only listed metes-and-bounds descrip-

tion of roads absorbed by the county road system found

in the lower court record included a road on the north

side of Section 16 of Gerrish Township (presumably the

southern portion of Hitchcock Avenue), but did not

include a road on the south side of Section 9 of Gerrish

Township (which would include the 20-foot strip). A

road commission employee admitted that the road com-

mission could find no documentation confirming that it

had accepted and certified the 20-foot strip as part of

Hitchcock Avenue at any point.

More importantly, however, the Kenwood plat had

been vacated for over 25 years before the county road

commission passed the first McNitt act resolution. To

accept the public lands dedicated in the Kenwood plat,

the county had to accept the dedicated lands before the

offer was withdrawn. Marx, 220 Mich App at 78. Even if

the county road commission did attempt to accept the

dedication in the Kenwood plat through McNitt act

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resolutions, any attempts at acceptance over 25 years

after vacation of the plat (and corresponding with-

drawal of the dedication in the plat) are certainly not

timely.

The trial court also determined that the dedication of

streets and alleys for public use was never withdrawn

after the Kenwood plat was vacated because the deeds

of the property transferred after the Kenwood plat was

vacated did not include the 20-foot strip. However, as

the deeds introduced into evidence make clear, and as

both parties noted during the trial court’s oral findings

of fact, Hellen included the 20-foot strip when she sold

her property in 1922, and the deed did not identify the

20-foot strip as a road or distinguish it in any way. The

20-foot strip continued to be included in deeds in

subsequent sales in 1924, and eventually Osian and

Hulda Anderson acquired ownership of the 20-foot

strip, along with the property to the north of it. They

subsequently did not include the 20-foot strip with the

property that they sold to the Rosses in 1931. Although

the trial court was made aware of this at the end of its

fact-finding, the trial court did not change its ruling or

indicate in any detail the extent, if any, to which its

apparent misunderstanding of the facts might have

affected its decision.

B. COMMON-LAW DEDICATION

The trial court’s rationale for determining that the

20-foot strip is a public road pursuant to common-law

dedication is unclear. The clearest indication of its

rationale for determining that a common-law dedica-

tion existed comes from its response to the parties at

the end of its fact-finding, when the parties informed

the trial court that several deeds describing transfers of

the property after the Kenwood plat was vacated did not

718 287 M

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690 [Apr

include the 20-foot strip. When presented with this

information, the court responded, “the portion dedi-

cated in Kenwood to the public was never sold out by

the Andersons, and if that doesn’t indicate that they

knew there was a road that was used for the public, I

don’t know what does.” It appears that the trial court

determined that a common-law dedication existed be-

cause all or part of the 20-foot strip had once been

dedicated as a road in a plat that was subsequently

vacated, and the Andersons did not include in the

description of the property conveyed the 20-foot strip

when they sold the adjacent property to the Rosses in

1931. The trial court appeared to conclude that this

information established that the Andersons intended to

dedicate the property as a road pursuant to a common-

law dedication. We disagree.

Again, “a valid common-law dedication of land for a

public purpose requires (1) intent by the property

owners to offer the land for public use, (2) an accep-

tance of the offer by the public officials and mainte-

nance of the road by public officials, and (3) use by the

public generally.” Appleton Trust, 236 Mich App at 554.

A common-law dedication does not need to be formal,

and “dedication may occur without a grant or even

written words.” Boone v Antrim Co Bd of Rd Comm’rs,

177 Mich App 688, 693; 442 NW2d 725 (1989). However,

the Boone Court also noted that to have a common-law

dedication, “there must be a clear and positive intent to

dedicate, as unequivocally demonstrated by the actions

of the owners. If intent is established, there must also

be either an express declaration or some acts by a public

authority indicating acceptance.” Id. (citations omit-

ted).

We do not agree with the trial court’s conclusion that

the mere fact that a subsequent owner of the property

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did not convey the 20-foot strip by deed is sufficient to

establish that this property is part of Hitchcock Avenue.

Instead, we conclude that the evidence included in the

lower court record is insufficient to establish that the

Andersons intended to offer the 20-foot strip for public

use when they excluded this property from their deed

transferring title of some of their property to the

Rosses. For this reason alone, the trial court’s determi-

nation that the 20-foot strip is a public road pursuant to

a common-law dedication is incorrect.

In the absence of any evidence to provide context for

the sale, the Andersons’ decision not to convey the

20-foot strip to the Rosses does not constitute an

unequivocal demonstration of a clear and positive in-

tent to dedicate the 20-foot strip to the public for use as

a road. Although it is conceivable that the Andersons

could have chosen not to convey the 20-foot strip

because they intended for the property to be used as a

road, it is also conceivable, for example, that they chose

not to convey the 20-foot strip because they wanted to

provide area residents with a site close to Hitchcock

Avenue where they could recreate. Further, considering

that the lower court record indicates that the Rosses

consented to the historical recreational use of the

20-foot strip during their long residence at the property

to the north of the strip, it is also conceivable that the

Rosses chose not to purchase the 20-foot strip because

they wanted their neighbors who lacked lake access to

have a place available along the water for picnics and

general recreation.

Further, we do not believe that the fact that all or

part of the 20-foot strip had once been dedicated as a

road in a vacated plat indicates that the Andersons had

a clear and positive intent to dedicate the 20-foot strip

to the public for use as a road when they sold some of

720 287 M

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their property to the Rosses in 1931. The property that

the Andersons purchased had changed hands several

times after the Kenwood plat was vacated, and each of

these transfers included the 20-foot strip as part of a

larger parcel of property, without distinguishing the

20-foot strip or otherwise indicating that it was a road.

Further, there is no evidence that the Andersons were

even aware that all or part of the 20-foot strip had once

been dedicated as a road. Without affirmative evidence

that the Andersons were even aware that the property

had once been dedicated as a road, we do not believe

that a dedication in a plat vacated in 1909 is sufficient

to establish that the Andersons had a clear and positive

intent to dedicate the 20-foot strip to the public for a

road in 1931.

In addition, the trial court appeared to base its

conclusion that the Andersons intended to dedicate the

20-foot strip to the public as a road on its determination

that the 20-foot strip had been used as a road for at least

seven years by the time of the 1931 property transfer.

The trial court based this fact-finding entirely on the

testimony of a long-time Higgins Lake resident, Myrtle

Moore, who had testified regarding her family’s use of

DeWitt’s Landing for recreation in the 1920s. However,

we agree with defendants that the trial court’s factual

determinations on this point are clearly erroneous.

When addressing whether the dedication of a strip of

land along the southern boundary of the Kenwood plat

was ever rescinded, the trial court stated:

The only person we have who can say that is Myrtle

Moore and she says—and she testified in her deposition,

and it is there, that it was a road, they used it, people used

it to launch, and that the DeWitts allowed them—the

picture says in front of the DeWitt’s—allowed people to use

the beach in front of them, not that portion. And even if

they did, does it outweigh the formal dedication, the

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writing in the plat of Kenwood? Does it outweigh the

writing in the deeds out, where they don’t deed out that

twenty feet? No. So we have that.

It is not clear from the trial court’s statements how

much weight it placed on Moore’s testimony when

determining whether the 20-foot strip was intended to

be a road, although the trial court admittedly placed

more weight on her testimony than on testimony con-

cerning later uses of the property. But regardless, the

trial court appeared to base its determination that the

20-foot strip was used as a road in the 1920s on a

misreading of Moore’s testimony. Although Moore tes-

tified that she and her family would go to DeWitt’s

Landing for recreation when she was a child, she never

specifically identified that the “path” that she and her

family used to get to the water was on the 20-foot strip,

and not on another part of the lakeshore. Further,

although she also testified that she saw individuals

drive trucks onto the lake to cut ice during the winter

and launch boats from the lakeshore, again, she never

identified whether this travel occurred on the 20-foot

strip. Accordingly, the trial court’s determination that

Moore’s testimony established that the 20-foot strip

was used as a road or path to the water is clearly

erroneous. At most, Moore’s testimony establishes that

a road or path to the water existed in the general area,

but it does not, on its own, establish that the road or

path was specifically on the 20-foot strip.

Accordingly, we conclude that the trial court erred

when it determined that the 20-foot strip was a public

road through a common-law dedication. Because the

evidence included in the lower court record fails to

establish that the Andersons intended to offer the

20-foot strip for public use, we need not address the

other elements of a common-law dedication.

722 287 M

ICH

690 [Apr

C. HIGHWAY-BY-USER DOCTRINE

The trial court never appeared to address whether

the 20-foot strip is a public road pursuant to the

highway-by-user doctrine. However, because the parties

raise this as an issue, and because consideration of this

doctrine is necessary to ensure a complete review of the

issue, we will address whether the 20-foot strip is a

public road pursuant to this doctrine. Again, to estab-

lish a public road pursuant to the highway-by-user

statute, MCL 221.20, plaintiff must establish “(1) a

defined line, (2) that the road was used and worked on

by public authorities, (3) public travel and use for ten

consecutive years without interruption, and (4) open,

notorious, and exclusive public use.”

Appleton Trust,

236 Mich App at 554-555. The evidence provided in the

lower court record does not establish that the 20-foot

strip is a road pursuant to the highway-by-user doctrine

because it includes no evidence that the road was used

and worked on by public authorities.

The evidence included in the lower court record is

insufficient to establish that the road commission or

other public officials ever used or maintained the 20-

foot strip. Initially, the trial court determined that the

road commission expended some money on the 20-foot

strip, apparently by putting in a guardrail. However, we

do not believe that the mere fact that the road commis-

Although it is unclear whether the northern 20 feet of Hitchcock

Avenue east of the guardrail is a public road by either statutory or

common-law dedication, the county road commission, which has undis-

putedly maintained the entire 50-foot width of the road east of the

guardrail for decades, would easily be able to establish that the entire

50-foot width of the paved, maintained portion of Hitchcock Avenue is a

road pursuant to the highway-by-user statute. Accordingly, this Court’s

ruling with regard to the status of the 20-foot strip would not realistically

call into question the road commission’s jurisdiction over the maintained

portion of Hitchcock Avenue.

2010] P

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sion put a guardrail and “Road Ends” sign up at the

eastern edge of the 20-foot strip constitutes evidence

that the road was used and worked on by public

authorities. In fact, the presence of the guardrail and

sign, both of which indicate to the public that the road

ends at that point and not at the water’s edge, could

constitute evidence that the road commission would

not, and did not, use or maintain the property to the

west of the guardrail (consisting of virtually the entire

20-foot strip) as a road.

Also, there is no evidence in the lower court record

regarding whether the road commission actually per-

formed maintenance work on the 20-foot strip itself.

Instead, DLDA members testified (and their signs on

the property indicate) that the road commission has

never spent money on or otherwise maintained the

20-foot strip. Further, a road commission employee

testified that she could find nothing in the road com-

mission’s records indicating that it performed mainte-

nance on the 20-foot strip. Although there is some

evidence that the road commission entertained requests

to perform repairs on the boat ramp on the 30-foot strip

and to seek removal of the picnic tables and bulletin

board seasonally placed on the 20-foot strip, there is no

evidence that the road commission ever acted on these

requests. Accordingly, we conclude that the road com-

mission never used and worked on the road, as is

required to establish that certain property is a public

road pursuant to the highway-by-user doctrine.

Further, to establish this element, the road commission must dem-

onstrate that it has kept the road in a “reasonably passable condition.”

Boone, 177 Mich App at 694. We do not believe that placing a guardrail

and a “Road Ends” sign at the eastern edge of the 20-foot strip indicates

that the road commission (as opposed to DLDA members) intended to do

anything to maintain the 20-foot strip itself in a “reasonably passable

condition.”

724 287 M

ICH

690 [Apr

III. APPLICATION OF JACOBS

Next, defendants claim that the trial court erred

when it concluded that the limitations set forth in

Jacobs, regarding the use of road ends along Higgins

Lake, applied to the 20-foot strip because the 20-foot

strip is not a road and, even if the 20-foot strip were

a road, Jacobs does not apply to roads created by

common-law implied dedication. Jacobs addresses

whether certain activities occurring at the end of a

platted road along the shore of Higgins Lake violated

the statutory dedication of the street in the original

plat “ ‘to the use of the Public.’ ” Jacobs, 199 Mich

App at 671. The Jacobs Court specifically confined its

review to the question “whether the disputed activi-

ties are within the scope of the plat dedication.” Id.

Because we have concluded that the 20-foot strip is

not a road under any of the previously discussed

theories, this issue is moot.

IV. ADVERSE POSSESSION AND PRESCRIPTIVE EASEMENT CLAIMS

Defendants argue that they have a vested right in

the 20-foot strip under either a theory of adverse

possession or prescriptive easement. Because the

20-foot strip is not a road, the road commission has

not acquired any jurisdiction over the 20-foot strip.

Accordingly, title to the property rests in the Ander-

sons, the last titleholders of the property, and their

heirs or devisees.

There is no evidence that the Andersons or their

descendents still maintain a presence at Higgins Lake.

Yet the evidence also indicates that the DLDA, a non-

profit organization, used and maintained the 20-foot

strip for at least 50 years. The evidence suggests that in

this situation, the DLDA might have a claim of adverse

2010] P

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possession.

Alternately, the evidence presented also

suggests that defendants might have a prescriptive

easement over the property.

Because the trial court

erroneously determined that the 20-foot strip was a

road, it never addressed these issues. In light of our

conclusion that the 20-foot strip is not a road, however,

this question again becomes relevant. However, because

a determination whether the DLDA has either adverse

possession or a prescriptive easement over the property

involves weighing evidence and making factual deter-

This Court has listed the circumstances under which a claim of

adverse possession may be established:

In order to establish a claim of adverse possession, a plaintiff

must provide “clear and cogent proof that possession has been

actual, visible, open, notorious, exclusive, continuous, and un-

interrupted for the statutory period of fifteen years.” Kipka v

Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993). The

fifteen-year period begins when the rightful owner has been

disseised of the land. MCL 600.5829. “Disseisin occurs when the

true owner is deprived of possession or displaced by someone

exercising the powers and privileges of ownership.” Kipka, [198

Mich App] at 439. In addition, a plaintiff must also show that

the plaintiff’s actions were “hostile” and “under claim of right,”

meaning that the use is “inconsistent with the right of the

owner, without permission asked or given, and which use would

entitle the owner to a cause of action against the intruder.”

Wengel v Wengel, 270 Mich App 86, 92-93; 714 NW2d 371 (2006)

(quotation marks and citation omitted). [Canjar v Cole, 283

Mich App 723, 731-732; 770 NW2d 449 (2009).]

“An easement by prescription results from use of another’s property

that is open, notorious, adverse, and continuous for a period of fifteen

years.” Plymouth Canton Community Crier, Inc v Prose, 242 Mich App

676, 679; 619 NW2d 725 (2000). A prescriptive easement is either

“(1) a use that is adverse to the owner of the land or the

interest in land against which the servitude is claimed, or

“(2) a use that is made pursuant to the terms of an intended

but imperfectly created servitude, or the enjoyment of the benefit

of an intended but imperfectly created servitude.” [Mulcahy v

Verhines, 276 Mich App 693, 700; 742 NW2d 393 (2007), quoting 1

Restatement Property, 3d, Servitudes, § 2.16, pp 221-222 (empha-

sis omitted).]

726 287 M

ICH

690 [Apr

minations, it would be premature for this panel to

address these questions at this time. Instead, we re-

mand this case to the trial court in order to permit the

parties to pursue these issues further. In so doing, we

advise the parties that it would be prudent to attempt to

contact the Andersons or their heirs or devisees and add

them as parties.

V. SUMMARY PROHIBITIONS REGARDING

MOORING AND BOAT HOISTS

Defendants argue that the trial court erred when it

granted plaintiff’s motion for summary disposition in

part and prohibited the DLDA from placing boat hoists

in the water or mooring boats, claiming that this

determination was incorrect and premature. We agree.

Any determination regarding whether the DLDA is

entitled to permit its members to place boat hoists in

the water or to moor boats on the 20-foot strip depends

on the nature of the rights that the DLDA has to the

property. Accordingly, our review of this issue would be

premature. Instead, remand for further fact-finding is

necessary to determine actual rights to the 20-foot

strip. After a determination is made regarding the

nature of the DLDA’s interest, if any, in the 20-foot

strip, the trial court will then be in a position to

reconsider the nature of the DLDA’s right to place boat

hoists in the water or moor boats in the water off the

20-foot strip in light of this factual determination.

VI. NUISANCE

Finally, defendants question the trial court’s ruling

that certain uses of the 20-foot strip constitute a

nuisance. In particular, defendants claim that the evi-

dence presented did not support the trial court’s deter-

mination and, regardless, plaintiff had no claim under

2010] P

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the theory of coming to the nuisance. Defendants also

argue that the trial court erred when it determined that

prohibiting the historical uses of DeWitt’s Landing,

including use of the property for sunbathing, picnick-

ing, and recreating, would be sufficient to abate the

activities that were allegedly the source of plaintiff’s

allegation of nuisance. Because nuisance-abatement

proceedings are generally equitable in nature, our re-

view is de novo. Capitol Props Group, LLC v 1247

Center Street, LLC, 283 Mich App 422, 430; 770 NW2d

105 (2009).

The trial court’s holding with regard to this issue is

unclear. The trial court addressed the nuisance issue in

its oral findings of fact, indicating that a nuisance

existed because people were making loud noises, urinat-

ing, and having bonfires on the 20-foot strip. The trial

court then appeared to conclude that a nuisance existed

because DLDA members were using the property in a

manner inconsistent with the limitations set forth in

Jacobs. The judgment in this case does not address the

nuisance issue specifically; instead, it simply prohibits

certain activities on the 20-foot strip, including sun-

bathing, lounging, picnicking, and other activities non-

incidental to the use of the water’s surface of Higgins

Lake, because these activities are “beyond the scope of

the dedication.” The trial court never actually ruled,

either at the bench trial or in its judgment, that making

loud noises, urinating, and having bonfires on the

20-foot strip was a nuisance, nor did it issue a ruling

preventing these activities from occurring.

We speculate that the trial court simply concluded

that its judgment restricting the use of the 20-foot strip

would be sufficient to address any alleged nuisance. The

trial court’s statements at trial, combined with its

failure to address the issue in its judgment in this case,

728 287 M

ICH

690 [Apr

indicate that the trial court might have found the

nuisance issue moot in light of its ruling restricting use

of the 20-foot strip. It also appears that the trial court’s

order restricting certain uses of the 20-foot strip is

simply an application of the limits of the uses of platted

road ends set forth in Jacobs. However, in light of our

holding that the 20-foot strip is not a road, remand to

the trial court is necessary with regard to this issue. On

remand, the trial court must readdress the issue to

determine whether any of defendants’ alleged activities

on the 20-foot strip constitute a nuisance and issue a

ruling to that effect.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

In its brief, plaintiff acknowledges that it is seeking relief under a

theory of private nuisance. In Capitol Props Group, 283 Mich App at

431-432, this Court stated:

The elements of a private nuisance are satisfied if (a) the other

has property rights and privileges in respect to the use or enjoy-

ment interfered with, (b) the invasion results in significant harm,

invasion is either (i) intentional and unreasonable, or (ii) uninten-

tional and otherwise actionable under the rules governing liability

for negligent, reckless, or ultrahazardous conduct. Cloverleaf Car

Co [v Phillips Petroleum Co, 213 Mich App 186, 193; 540 NW2d

297 (1995)]. To prove a nuisance, significant harm to the plaintiff

resulting from the defendant’s unreasonable interference with the

use or enjoyment of property must be proven. City of Jackson v

Thompson-McCully Co, LLC, 239 Mich App 482, 490; 608 NW2d

531 (2000).

Accordingly, the trial court would need to apply this test to determine if

a nuisance, in fact, occurred in this case.

2010] P

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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 March 11, 2010:

EOPLE V

OWDY

, Docket No. 287689; reported at 287 Mich App

278. The Court on its own motion orders that the February 2, 2010,

opinion is hereby amended. The opinion is modified on page two,

paragraph two, first sentence, with minor, nonsubstantive changes to

eliminate any potential ambiguities. The opinion is amended as follows:

The old opinion read, “There is no argument that defendant has a

domicile.”

The new opinion reads, “Domicile is not an issue in this case because

the parties agree that as a homeless person, defendant has no ‘true,

fixed, principal, and permanent home.’ ”

In all other respects, the February 2, 2010, opinion remains un-

changed.

Order Entered March 23, 2010:

LPHA

APITAL

ANAGEMENT

NC V

ENTENBACH

, Docket No. 287280;

reported at 287 Mich App 589. The Court orders that the March 9, 2010,

opinion is hereby vacated, and a new opinion is attached.

PECIAL

RDERS

801

INDEX-DIGEST

INDEX–DIGEST

ABUSE OF PROCESS—See

ORTS

ACCEPTANCE OF DEDICATIONS—See

IGHWAYS

1, 2, 3, 4

ACTIONS

EDICAL

ALPRACTICE

1. A plaintiff in a medical malpractice action must provide

the statutorily required notice of intent to file the action

not less than 182 days before the action is commenced;

a plaintiff who has complied with such requirement and

thereafter files a complaint to commence the action is

not required to file a second notice of intent when the

plaintiff is then permitted to file an amended complaint

that does not name new defendant parties or set forth

new potential causes of injury but merely clarifies the

plaintiff’s claims against the defendants (MCL

600.2912b). Decker v Rochowiak, 287 Mich App 666.

2. Nurses do not engage in the practice of medicine al-

though they are licensed healthcare professionals; the

common-law standard of care applicable to malpractice

actions against nurses is the skill and care ordinarily

possessed and exercised by practitioners of the profes-

sion in the same or similar localities. Decker v Rochow-

iak, 287 Mich App 666.

OVEREIGN

MMUNITY

3. The state can only waive its immunity from suit and

consent to be sued through an act of the Legislature or

through the constitution. County Rd Ass’n of Michigan

v Governor, 287 Mich App 95.

851

TANDING

4. Standing is not established by a party by merely indi-

cating a subjective interest in the litigation; instead, a

party must demonstrate an interest in the litigation

that is distinct from that of the general public; standing

requires a demonstration that the plaintiff’s substantial

interest will be detrimentally affected in a manner

different from the citizenry at large. County Rd Ass’n of

Michigan v Governor, 287 Mich App 95.

5. The irreducible constitutional minimum of standing

contains three elements; first, the plaintiff must have

suffered an injury in fact, which is an invasion of a

legally protected interest that is concrete and particu-

larized and actual or imminent, not conjectural or

hypothetical; second, there must be a causal connection

between the injury and the conduct complained of, that

is the injury has to be fairly traceable to the challenged

action of the defendants and not the result of the

independent action of some third party not before the

court; third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision; the party invoking jurisdiction bears

the burden of establishing these elements. County Rd

Ass’n of Michigan v Governor, 287 Mich App 95.

RANSPORATION

UTHORITIES

6. The Metropolitan Transportation Authorities Act re-

quires notice of any claim against a transportation

authority based upon injury to persons or property to be

served upon the authority no later than 60 days from

the occurrence through which such injury is sustained;

under the court rules, where service is not done by

mailing, service means delivery at a particular time and

place; the term “service” is defined as the formal deliv-

ery of a writ, summons, or other legal process (MCR

2.102, 2.103, 2.104, 2.105; MCL 124.419). Nuculovic v

Hill, 287 Mich App 58.

ADJUSTMENT OF AWARDS—See

RIAL

AFFIDAVITS—See

ITNESSES

AMENDMENT OF PLEADINGS—See

CTIONS

852 287 M

ICH

ANONYMOUS TIPSTERS—See

EARCHES AND

EIZURES

APPEAL

OSTJUDGMENT

RDERS

1. A separate appeal must be taken from a postjudgment

order denying a defendant’s request for an award of

attorney fees and costs where, before the trial court

entered the order denying fees and costs, the defendant

filed a cross-appeal in the Court of Appeals with regard

to the original judgment. Mossing v Demlow Products,

Inc, 287 Mich App 87.

ARMED ROBBERY—See

RIMINAL

ARTIFICIAL WATERCOURSES—See

ATER AND

ATERCOURSES

ASSAULTING POLICE OFFICERS—See

RIMINAL

3, 4

ATTORNEY AND CLIENT

See, also,

RIMINAL

ONFLICTS OF

NTEREST

1. A lawyer who has formerly represented a client in a

matter may not thereafter represent another person in

the same or a substantially related matter in which that

person’s interests are materially adverse to the interests

of the former client unless the former client consents

after consultation; a case is substantially associated

with another case if the factual contexts of the two

representations are similar or related (MRPC 1.9).

People v Waterstone, 287 Mich App 368.

2. A party seeking the disqualification of counsel for a

conflict of interest bears the burden of demonstrating

specifically how and as to what issues in the case the

likelihood of prejudice will result. People v Waterstone,

287 Mich App 368.

UTIES OF

OYALTY AND

ONFIDENTIALITY

3. An attorney’s duties of loyalty and confidentiality con-

tinue even after an attorney-client relationship con-

cludes; the continuing duties of loyalty and confidenti-

NDEX

-D

IGEST

853

ality apply only to matters in which a new client’s

interests qualify as both adverse to those of the former

client and substantially related to the subjects of the

attorney’s former representation. Alpha Capital Mgt,

Inc v Rentenbach, 287 Mich App 589.

4. A three-part test may be employed to examine the

circumstances under which a lawyer’s subsequent rep-

resentation of a client may be deemed substantially

related to the legal services performed for a former

client for purposes of determining a lawyer’s continuing

duties of loyalty and confidentiality to the former client:

the test examines the nature and scope of the prior

representation, the nature of the present lawsuit or

representation, and whether, in the course of the prior

representation, might the client have disclosed to the

attorney confidences that could be detrimental to the

former client in the current litigation. Alpha Capital

Mgt, Inc v Rentenbach, 287 Mich App 589.

ATTORNEY FEES

See, also,

UDGMENTS

RIAL

RIVOLOUS

AWSUITS

1. Auto-Owners v Ferwerda (On Remand), 287 Mich App

248.

ENALTY

NTEREST

2. Auto-Owners v Ferwerda (On Remand), 287 Mich App

248.

ATTORNEY GENERAL

ONFLICTS OF

NTEREST

1. The Attorney General has the responsibility to recog-

nize and avoid conflicts of interest; the Attorney Gen-

eral has an affirmative duty to perform a conflict check

before undertaking the prosecution of a judge or other

person whom the office is statutorily required to defend.

People v Waterstone, 287 Mich App 368.

ICHIGAN

ULES OF

ROFESSIONAL

ONDUCT

2. The Attorney General is subject to the Michigan Rules

of Professional Conduct; the unique status of the Attor-

ney General requires accommodation, not exemption,

under the rules; mechanical application of the rules to

the Attorney General is not possible and dual represen-

854 287 M

ICH

tation by the Attorney General may be allowed in

certain circumstances not otherwise permitted in the

arena of private practice. People v Waterstone, 287 Mich

App 368.

BETTING—See

AMBLING

ORDS AND

HRASES 1

BILLS, NOTES, AND CHECKS

EFERRED

RESENTMENT

ERVICE

RANSACTIONS

1. Both MCL 600.2952, a section of the Revised Judicature

Act, and MCL 487.2158, a section of the Deferred

Presentment Service Transactions Act, relate to the

same subject matter by specifying remedies available to

entities that have been given a check that is later

returned by the drawee because insufficient funds are

available in the account to honor the check; the statutes

are in pari materia, therefore, the more specific statute

controls where there is an irreconcilable conflict; the

Deferred Presentment Service Transactions Act con-

trols the remedies available to a lender licensed under

the act that is given an insufficient funds check because

the remedy it provides irreconciliably conflicts with the

remedy provided by the Revised Judicature Act. Michi-

gan Deferred Presentment Services Ass’n v Commis-

sioner of the Office of Financial & Ins Regulation, 287

Mich App 326.

BLACK ICE—See

ANDLORD AND

ENANT

CIVIL RIGHTS—See

ONSTITUTIONAL

1, 2

CLAIMS AGAINST GOVERNMENTAL AGENCIES—See

RAINS

COLLEGES AND UNIVERSITIES—See

OVERNMENTAL

MMUNITY

COMMON AREAS—See

ANDLORD AND

ENANT

NDEX

-D

IGEST

855

COMMON ELEMENTS—See

ONDOMINIUMS

COMMON LAW—See

IGHWAYS

COMMON-LAW ELEMENTS OF GAMBLING—See

AMBLING

CONDOMINIUMS

AXATION

1. Special assessments and property taxes shall be assessed

against the individual condominium units identified as

units of the condominium subdivision plan and not on

the total property of the project or any other part of the

project; each condominium unit, together with and

inseparable from its appurtent share of the common

elements, shall be a sole property subject to ownership,

mortgaging, taxation, possession, sale, and all types of

juridical acts, inter vivos or causa mortis independent of

the other condominium units (MCL 559.161,

559.231[1]). Paris Meadows, LLC v City of Kentwood,

287 Mich App 136.

ORDS AND

HRASES

2. The “common elements” of a condominium project are

the portions of the project other than the condominium

units; a “condominium unit” is that portion of a project

designed and intended for separate ownership and use,

as described in the master deed, regardless of whether it

is intended for residential, office, industrial, business, or

recreational use, use as a time-share unit, or any other

type of use (MCL 559.103[7], 559.104[3]). Paris Mead-

ows, LLC v City of Kentwood, 287 Mich App 136.

3. The Condominium Act defines a “convertible area” as a

unit or a portion of the common elements of the condo-

minium project referred to in the condominium docu-

ments within which additional condominium units or

general or limited common elements may be created in

accordance with the act (MCL 559.105[3]). Paris Mead-

ows, LLC v City of Kentwood, 287 Mich App 136.

CONDUCT IN FLEEING SCENE OF CRIME—See

RIMINAL

856 287 M

ICH

CONFLICT OF LAWS

See, also,

ILLS,

OTES, AND

HECKS

ETROPOLITAN

RANSPORTATION

UTHORITIES

1. The provisions of MCL 124.419 and MCL 257.401 are

not mutually exclusive; MCL 257.401 provides that the

owner of a vehicle may be liable for the negligent

operation of the vehicle; MCL 124.419 only prescribes a

notice requirement for presenting a claim against a

transportation authority and does not negate the liabil-

ity established by MCL 257.401; the fact that a trans-

portation authority may be subject to liability under

MCL 257.401 as the owner of a vehicle does not preclude

the applicability of MCL 124.419 to all claims that may

arise in connection with the transportation authority.

Nuculovic v Hill, 287 Mich App 58.

CONFLICTS OF INTEREST—See

TTORNEY AND

LIENT

1, 2

TTORNEY

ENERAL

ROSECUTING

TTORNEYS

1, 2

CONFRONTATION CLAUSE—See

ONSTITUTIONAL

3, 4

CONSENT TO INTRUSION—See

ORTS

CONSTITUTIONAL LAW

See, also,

OVERNMENTAL

MMUNITY

IVIL

IGHTS

1. The “ministerial” exception is a nonstatutory, constitu-

tionally compelled exception to the application of

employment-discrimination and civil rights statutes to

religious institutions and their ministerial employees; the

exception generally bars inquiry into a religious institu-

tion’s underlying motivation for employment decisions

regarding ministerial employees; the exception applies to

claims under the Civil Rights Act and the Whistleblowers’

Protection Act and operates to bar any claim the resolu-

tion of which would limit a religious institution’s right to

select who will perform particular spiritual functions; the

appropriate analysis is the religiously affiliated nature of

the institution and the employee’s role there, not the

NDEX

-D

IGEST

857

particular issues that spring from a termination of employ-

ment and the resulting claims (MCL 15.361 et seq.,

37.2101 et seq.). Weishuhn v Lansing Catholic Diocese,

287 Mich App 211.

2. The ministerial exception to the application of

employment-discrimination and civil rights statutes to

religious institutions and their ministerial employees

does not apply to all employment decisions by religious

institutions, nor does it apply to all claims by ministers;

it applies only to claims that involve a religious institu-

tion’s choice as to who will perform spiritual functions;

termination of the employment of a ministerial em-

ployee by a religious institution is an action absolutely

protected under the First Amendment, regardless of the

reason for doing so. Weishuhn v Lansing Catholic Dio-

cese, 287 Mich App 211.

ONFRONTATION

LAUSE

3. Testimonial hearsay is inadmissible against a criminal

defendant unless the declarant is unavailable at trial

and there was a prior opportunity for cross-examination

of the declarant; statements are testimonial where the

primary purpose of the statements or the questioning

that elicits them is to establish or prove past events

potentially relevant to later criminal prosecution. People

v Lewis (On Remand), 287 Mich App 356.

4. The class of testimonial statements covered by the

Confrontation Clause includes material such as affida-

vits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pre-

trial statements that declarants would reasonably ex-

pect to be used prosecutorially; also included are extra-

judicial statements contained in formalized testimonial

materials, such as affidavits, depositions, prior testi-

mony, confessions, and statements that were made

under circumstances that would lead an objective wit-

ness reasonably to believe that the statement would be

available for use at a later trial (US Const, Am VI; Const

1963, art 1, § 20). People v Lewis (On Remand), 287

Mich App 356.

CONTRACTS—See

OSPITALS

CONVERTIBLE AREAS—See

ONDOMINIUMS

858 287 M

ICH

COUNTIES

ASTE

ISPOSAL

ACILITIES

1. Counties are authorized by statute to own and run

waste disposal facilities; although certain provisions of

the Natural Resources and Environmental Protection

Act prohibit the operation of an unlicensed landfill by a

county, those provisions do not show a legislative intent

to withdraw a county’s authority to operate a waste

disposal facility for a violation of the environmental

protection laws; a county landfill operating in violation

of state licensing and environmental protection laws

does not constitute an ultra vires activity (MCL 123.737,

324.11509, 324.11512[2]). Dextrom v Wexford County,

287 Mich App 406.

CRIMINAL LAW

RMED

OBBERY

1. An armed robber’s conduct in fleeing the scene of the

crime is included within the course of committing the

armed robbery (MCL 750.529, 750.530). People v Mann,

287 Mich App 283.

TTORNEY AND

LIENT

2. People v McCauley, 287 Mich App 158.

SSAULTING

OLICE

FFICERS

3. It is illegal for a person to assault, batter, resist, or

obstruct a police officer, even if the officer is taking

unlawful action, as long as the officer’s actions are done

in the performance of the officer’s duties (MCL

750.81d[1]). People v Corr, 287 Mich App 499.

4. The statute that makes it a crime for an individual to

assault, batter, wound, resist, obstruct, oppose, or en-

danger a person who the individual knows or has reason

to know is performing his or her duties as a police officer

encompasses all the duties of a police officer as long as

the officer is acting in the performance of those duties

(MCL 750.81d[1]). People v Corr, 287 Mich App 499.

VIDENCE

5. People v Gipson, 287 Mich App 261.

INANCIAL

RANSACTION

EVICES

6. A person who knowingly retains, possesses, secretes, or

uses a financial transaction device without the consent

of the deviceholder is guilty of a felony regardless of

NDEX

-D

IGEST

859

whether the person attempts to access a proprietary

account with the device; a record or copy of information

that can be used to gain access to money, credit ac-

counts, or anything of value may be a financial transac-

tion device (MCL 750.157m[f][v], 750.157n). People v

Malone, 287 Mich App 648.

OMICIDE

7. Identity is an element of every criminal offense; the

elements of the crime of premeditated murder are an

intentional killing of a human being with premeditation

and deliberation; premeditation and deliberation may

be inferred from the circumstances and minimal circum-

stantial evidence is sufficient to prove an actor’s state of

mind (MCL 750.316). People v Lewis (On Remand), 287

Mich App 356.

FFENDERS

EGISTRATION

8. The Sex Offenders Registration Act provides for the

registering of and reporting by individuals convicted of

specified crimes where those individuals have either a

domicile or a residence, as defined by the act (MCL

28.721 et seq.). People v Dowdy, 287 Mich App 278.

CUSTODIAL STATEMENTS—See

RIMINAL

CUTTING DOWN OR CARRYING AWAY GRASS, HAY,

OR GRAIN—See

RESPASS

DECLARATIONS OF PARTY PREFERENCE—See

LECTIONS

DEDICATIONS OF PROPERTY—See

IGHWAYS

1, 2, 3, 4

DEFERRED PRESENTMENT SERVICE

TRANSACTIONS ACT—See

ILLS,

OTES, AND

HECKS

DELIBERATION—See

RIMINAL

860 287 M

ICH

DEPARTURES FROM SENTENCING

GUIDELINES—See

ENTENCES

1, 2

DRAINS

EWAGE

-D

ISPOSAL

-S

YSTEM

VENTS

1. An appropriate governmental agency’s receipt of notice

of a sewage disposal system event together with a list of

the households affected by the event from a person who

owns or occupies the affected property does not consti-

tute written notice of a “claim” regarding the event for

purposes of providing notice of a claim that complies

with MCL 691.1419(1) (MCL 691.1416[b]). Dybata v

Wayne County, 287 Mich App 635.

DUTIES OF LOYALTY AND CONFIDENTIALITY—See

TTORNEY AND

LIENT

3, 4

E-MAIL—See

ECORDS

EFFECTIVE ASSISTANCE OF COUNSEL—See

RIMINAL

ELECTIONS

REEDOM OF

NFORMATION

1. The disclosure of information regarding which partici-

pating political party ballot an elector voted in the 2008

presidential primary is not the disclosure of personal

information for purposes of the privacy exemption to

disclosure of the Freedom of Information Act, MCL

15.243(1)(a); even if it were the disclosure of personal

information, the disclosure would not constitute a

clearly unwarranted invasion of an individual’s privacy

for purposes of the privacy exemption. Practical Politi-

cal Consulting, Inc v Secretary of State, 287 Mich App

434.

ORDS AND

HRASES

2. The “separate record[s]” created under MCL 168.615c(3),

as added by 2007 PA 52, which contain the printed name,

address, and qualified voter file number of each elector and

the participating political party ballot selected by that

elector at the 2008 presidential primary, are public records

NDEX

-D

IGEST

861

that are not specifically described and exempted from

disclosure under MCL 168.495a(2), as amended by 1995

PA 213; the “voter registration record[s]” that amended

§ 495a(2) exempts from disclosure are completely distinct

from the “separate records[s]” kept under § 615c(3) of

2007 PA 52. Practical Political Consulting, Inc v Secretary

of State, 287 Mich App 434.

3. The “information” kept under MCL 168.615c(3), as

added by 2007 PA 52, following the 2008 presidential

primary election that includes the printed name, ad-

dress, and qualified voter file number of each elector and

the participating political party ballot selected by the

elector is not an elector’s “declaration of party prefer-

ence” or no party preference under MCL 168.495a(2), as

amended by 1995 PA 213. Practical Political Consulting,

Inc v Sec of State, 287 Mich App 434.

ELEMENTS OF GAMBLING—See

AMBLING

ELEMENTS OF HOMICIDE—See

RIMINAL

ELEMENTS OF LOTTERIES—See

OTTERIES

ELEMENTS OF STANDING—See

CTIONS

EMPLOYMENT DISCRIMINATION—See

ONSTITUTIONAL

EVIDENCE

See, also,

RIMINAL

XCLUSIONARY

ULE

1. The exclusionary rule does not act to bar the introduc-

tion of evidence of independent crimes directed at police

officers as a reaction to an illegal arrest or search. People

v Corr, 287 Mich App 499.

EXCLUSIONARY RULE—See

VIDENCE

862 287 M

ICH

EXEMPTIONS FROM DISCLOSURE UNDER

FOIA—See

LECTIONS

EXPERT WITNESSES—See

ITNESSES

1, 2

FEES—See

AXATION

1, 2, 6

FINAL ORDERS—See

UDGMENTS

FOR-PROFIT, THIRD-PARTY TRANSFERS—See

OTTERIES

FORMER CLIENTS—See

TTORNEY AND

LIENT

3, 4

FREEDOM OF INFORMATION ACT—See

LECTIONS

ECORDS

1, 2, 3

FUTURE ADVANCE MORTGAGES—See

ORTGAGES

1, 2

GAMBLING

See, also,

OTTERIES

ETTING

1. The legislative goal behind the enactment of MCL

750.301 was the suppression of betting; the statute

prohibits private betting between consenting parties

and is not limited to combating only the effects of

organized and commercialized gambling. Attorney Gen-

eral v PowerPick Club, 287 Mich App 13.

OMMON

-L

LEMENTS

2. The common-law elements of “gaming” or “gambling”

are price or consideration, chance, and prize or award.

Attorney General v PowerPick Club, 287 Mich App 13.

GIFT ENTERPRISES—See

OTTERIES

NDEX

-D

IGEST

863

GOVERNMENTAL FUNCTIONS—See

OVERNMENTAL

MMUNITY

GOVERNMENTAL IMMUNITY

See, also,

RAINS

ONSTITUTIONAL

1. Governmental immunity generally is not available in a

state court action where it is alleged that the state

violated a right conferred by the state constitution; a

constitutional mandate to use transportation-related

taxes and fees for transportation-related purposes does

not necessarily constitute a right conferred by the state

constitution. County Rd Ass’n of Michigan v Governor,

287 Mich App 95.

2. Ward v Michigan State Univ (On Remand), 287 Mich

App 76.

ROPRIETARY

-F

UNCTION

XCEPTION

3. An activity conducted by a governmental agency, before

it may be deemed a proprietary function, must satisfy

two tests: the activity must be conducted primarily for

the purpose of producing a pecuniary profit and it

cannot normally be supported by taxes or fees; whether

a profit is actually generated, where a profit is depos-

ited, and how it is spent must first be considered in

determining whether the agency’s primary purpose is to

produce a pecuniary profit (MCL 691.1413). Dextrom v

Wexford County, 287 Mich App 406.

4. The proprietary function exception to governmental

immunity does not apply to an activity if the activity

is normally supported by taxes or fees, even if the

activity is conducted for the primary purpose of

making a pecuniary profit; it is important to consider

the type of activity under examination when deciding

whether an activity is normally supported by taxes or

fees (MCL 691.1413). Dextrom v Wexford County, 287

Mich App 406.

5. The determination whether the proprietary function

exception to governmental immunity is applicable in an

action is a question of law for the court; a trial court may

hold an evidentiary hearing to obtain the factual devel-

opment necessary to determine whether a governmental

864 287 M

ICH

agency’s activities are subject to the proprietary func-

tion exception (MCL 691.1413). Dextrom v Wexford

County, 287 Mich App 406.

UBLIC

-B

UILDING

XCEPTION

6. Ward v Michigan State Univ (On Remand), 287 Mich

App 76.

ORDS AND

HRASES

7. A governmental agency is generally immune from tort

liability if it is engaged in the exercise or discharge of

a governmental function; a governmental function is

an activity that is expressly or impliedly mandated or

authorized by constitution, statute, local charter or

ordinance, or other law (MCL 691.1401[f],

691.1407[1]). Dextrom v Wexford County, 287 Mich

App 406.

HIGHWAY-BY-USER DOCTRINE—See

IGHWAYS

HIGHWAYS

EDICATION

1. A valid statutory dedication of land for a public purpose

requires two elements: a recorded plat designating the

areas for public use, showing a clear intent by the plat

proprietor to dedicate those areas to public use, and

acceptance by the proper public authority; public accep-

tance must be timely and disclosed through a manifest

act by the public authority either formally confirming or

accepting the dedication, or by exercising authority over

the designated areas in some of the ordinary ways of

improvement or regulation. Pine Bluffs Area Property

Owners Ass’n, Inc v DeWitt Landing & Dock Ass’n, 287

Mich App 690.

2. The mere certification of a plat does not constitute

acceptance by the proper public authority of all the

property in the plat dedicated to public use; acceptance

by a governmental authority of a road dedicated to the

public must be by a formal resolution or informally

through the expenditure of public money for repair,

improvement, or control of the roadway, or through

public use. Pine Bluffs Area Property Owners Ass’n, Inc

v DeWitt Landing & Dock Ass’n, 287 Mich App 690.

3. Timely acceptance by a governmental authority of land

NDEX

-D

IGEST

865

in a recorded plat dedicated for a public purpose must

take place before the offer lapses or the property owner

withdraws the offer; an offer of dedication is withdrawn

when the property owner undertakes an affirmative act

to withdraw the offer, such as using the property in a

manner that is inconsistent with public ownership; the

vacation of the plat constitutes an affirmative act to

withdraw the offer of dedication absent evidence to the

contrary. Pine Bluffs Area Property Owners Ass’n, Inc v

DeWitt Landing & Dock Ass’n, 287 Mich App 690.

4. A valid common-law dedication of land for a public

purpose requires an intent by the property owner to

offer the land for a public use, an acceptance of the offer

by public officials and maintenance of the land by public

officials, and use by the public generally; a common-law

dedication need not be formal and dedication may occur

without a grant or even written words. Pine Bluffs Area

Property Owners Ass’n, Inc v DeWitt Landing & Dock

Ass’n, 287 Mich App 690.

IGHWAY-BY

-U

SER

OCTRINE

5. A plaintiff, to establish a public road pursuant to the

highway-by-user statute, must establish: a defined line,

that the road was used and worked on by public authori-

ties, public travel and use for 10 consecutive years

without interruption, and open, notorious, and exclu-

sive public use (MCL 221.20). Pine Bluffs Area Property

Owners Ass’n, Inc v DeWitt Landing & Dock Ass’n, 287

Mich App 690.

HOMICIDE—See

RIMINAL

HOSPITALS

ONTRACTS

1. Holland v Trinity Health Care Corp, 287 Mich App 524.

HOUSING EXPENSES—See

NSURANCE

IDENTITY—See

RIMINAL

INEFFECTIVE ASSISTANCE OF COUNSEL—See

RIMINAL

866 287 M

ICH

INFORMATION CONCERNING VOTERS—See

LECTIONS

INSTRUCTIONS TO JURY—See

URY

INSURANCE

OTOR

EHICLE

IABILITY

OVERAGE

1. The Insurance Code provides that, if authorized by the

insured, automobile liability or motor vehicle liability

coverage may be excluded when a vehicle is operated by

a named excluded person; the warning that must be

provided with regard to a named excluded person must

be verbatim the warning provided in MCL 500.3009(2)

and must appear on the certificate of insurance and at

least one of the following: the face of the policy, the

declaration page, or the certificate of the policy. Progres-

sive Michigan Ins Co v Smith, 287 Mich App 537.

-F

AULT

2. Although MCL 500.3158(1) requires an employer of a

person injured in an automobile accident to furnish a

sworn statement regarding the earnings of the injured

person upon request of a personal protection insurer,

the statute does not state that, if such information is not

provided, the injured person completely loses the right

to work-loss benefits under MCL 500.3107(1)(b). Ward v

Titan Ins Co, 287 Mich App 552.

3. Housing expenses for a person injured in an automobile

accident are compensable by a personal protection in-

surer only to the extent that the expenses are greater as

a result of the accident. Ward v Titan Ins Co, 287 Mich

App 552.

OLICY

XCLUSIONS

4. Doe v Citizens Ins Co, 287 Mich App 585.

ORDS AND

HRASES

5. Doe v Citizens Ins Co, 287 Mich App 585.

INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS—See

ORTS

INTERCOLLEGIATE ATHLETICS—See

OVERNMENTAL

MMUNITY

NDEX

-D

IGEST

867

INTERFERENCE WITH A BUSINESS

RELATIONSHIP—See

ORTS

INTERMEDIATE SANCTIONS—See

ENTENCES

1, 2

INTRUSION UPON SECLUSION—See

ORTS

4, 5

INVASION OF PRIVACY—See

ORTS

4, 5

INVESTIGATIVE STOPS—See

EARCHES AND

EIZURES

JUDGMENTS

OSTJUDGMENT

RDERS

1. A postjudgment order awarding or denying attorney

fees and costs under MCR 2.403, 2.405, 2.265, or other

law or court rule is a final judgment or final order (MCR

7.202[6][a][iv]). Mossing v Demlow Products, Inc, 287

Mich App 87.

ELIEF

ROM

UDGMENTS

2. Relief from a judgment of a trial court is not appropriate

where the case has been dismissed in accordance with a

directive of the Court of Appeals and the appellate

process has been concluded or where the trial court has

yet to comply with the directive of the Court of Appeals

to dismiss the case. Farley v Carp, 287 Mich App 1.

3. Relief from a judgment should not be granted under

MCR 2.612(C)(1)(f) where a party sleeps on their appel-

late rights by failing to seek leave to appeal in the

Supreme Court from an adverse ruling in the Court of

Appeals; relief from a judgment is not appropriate

where the party never pursues an appeal from the trial

court’s ruling to the Court of Appeals. Farley v Carp,

287 Mich App 1.

4. Relief from a judgment under MCR 2.612(C)(1)(f) is

inappropriate where a party has not sought appellate

review of the trial court’s final order and the basis on

which relief from the judgment is sought is a subsequent

868 287 M

ICH

appellate decision in a different case. Farley v Carp, 287

Mich App 1.

JURISDICTION—See

AXATION

4, 5

JURY

URY

NSTRUCTIONS

1. Jury instructions, even if somewhat imperfect, do not

create error requiring reversal if, on balance, the theories

of the parties and the applicable law are adequately and

fairly presented to the jury; a verdict should not be set

aside unless failure to do so would be inconsistent with

substantial justice and reversal is not warranted when an

instructional error does not affect the outcome of the trial.

Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589.

JURY INSTRUCTIONS—See

URY

JURY TRIALS—See

RIAL

LANDLORD AND TENANT

OMMON

REAS

1. A lessor of leased residential property has a statutory duty

to keep all common areas fit for the use intended by the

parties to the lease; the primary purpose or intended use of

a common area stairway is to provide pedestrian access to

different levels of the building or structure; the statutory

duty does not require perfect maintenance of such a

stairway and the stairway need not be in an ideal condi-

tion, nor in the most accessible condition possible, but it

must provide reasonable access to different building levels;

the presence of black ice on a darkly lit, unsalted stairway

might pose a hidden danger that denies tenants reasonable

access to different levels of a building and renders the

stairway unfit for its intended use (MCL 554.139[1][a]).

Hadden v McDermitt Apartments, LLC, 287 Mich App

124.

LICENSES—See

OUNTIES

OTTERIES

NDEX

-D

IGEST

869

LIMITATION OF ACTIONS

EDICAL

ALPRACTICE

1. The two-year limitations period applicable to medical

malpractice actions is tolled, for a maximum of 182 days,

when the plaintiff provides a valid notice of intent to

bring the action before the period of limitations expires;

the plaintiff must then wait for the duration of the

notice of intent period before a complaint may be filed;

a plaintiff has not commenced a medical malpractice

action where the plaintiff files the complaint before the

notice of intent period has expired (MCL 600.2912b[1],

600.5805[6], 600.5856). Driver v Naini, 287 Mich App

339.

2. The nonparty fault statute, MCL 600.2957, and the

notice of intent statute, MCL 600.2912b(1), relate to the

same subject matter and are in pari materia for pur-

poses of a medical malpractice action where there is a

notice of nonparty fault given and a failure to wait the

entire notice of intent waiting period before filing an

amended complaint naming that party; the provisions of

the notice of intent statute, which apply only to medical

malpractice actions, control the determination whether

the action is barred by the applicable statute of limita-

tions (MCL 600.2912b[1], 600.5805[6], MCL 600.5856).

Driver v Naini, 287 Mich App 339.

LOTTERIES

AMBLING

1. Michigan’s lottery and gambling statutes were validly

enacted to preserve the public safety, morals, and wel-

fare; harm to the public is presumed to flow from

violation of a valid statute enacted to preserve the public

health, safety, and welfare. Attorney General v Power-

Pick Club, 287 Mich App 13.

IFT

NTERPRISES

2. A gift enterprise is, among other things, a merchant’s

scheme to induce sales by giving buyers tickets that

carry a chance to win a prize (MCL 750.372). Attorney

General v PowerPick Club, 287 Mich App 13.

ICENSES

3. The Legislature, in enacting MCL 432.27(1), intended

that the prohibition against sales of lottery tickets by

persons who are not licensed agents is to be read

870 287 M

ICH

broadly; the general prohibition against unlicensed sales

or selling a ticket at a price greater than that fixed by

the lottery commissioner encompasses for-profit, third-

party transfers. Attorney General v PowerPick Club, 287

Mich App 13.

RADITIONAL

LEMENTS

4. The traditional common-law elements of a lottery are

consideration, prize, and chance; these essentials can-

not be used to frustrate the plain and ordinary

meaning of the word lottery; a “lottery” is commonly

defined as a gambling game or method of raising

money in which a large number of tickets are sold and

a drawing is held for prizes, or a drawing of lots, or

any happening or process that is or appears to be

determined by chance. Attorney General v PowerPick

Club, 287 Mich App 13.

MEDICAL MALPRACTICE—See

CTIONS

1, 2

IMITATION OF

CTIONS

1, 2

ITNESSES

METROPOLITAN TRANSPORTATION AUTHORITIES

ACT—See

CTIONS

ONFLICT OF

AWS

MICHIGAN RULES OF PROFESSIONAL

CONDUCT—See

TTORNEY

ENERAL

MINISTERIAL EXCEPTION—See

ONSTITUTIONAL

1, 2

MORTGAGES

ORDS AND

HRASES

1. A “future advance” is an indebtedness or other obliga-

tion that is secured by a mortgage and arises or is

incurred after the mortgage has been recorded, whether

or not the future advance was obligatory or optional on

the part of the mortgagee (MCL 565.901[a]). Citizens

State Bank v Nakash, 287 Mich App 289.

NDEX

-D

IGEST

871

2. A “future advance mortgage” is a mortgage that secures

a future advance and is recorded; if a recorded mortgage

is amended to secure, expressly and not by implication,

a future advance arising after the amendment, the

mortgage becomes a future advance mortgage at the

time the amendment is recorded; the instrument creat-

ing a future advance mortgage must be recorded (MCL

565.901 [b]). Citizens State Bank v Nakash, 287 Mich

App 289.

MOTIONS AND ORDERS

See, also,

ITNESSES

UMMARY

ISPOSITION

1. Summary disposition of all or part of a claim or defense

may be granted when, except as to the amount of

damages, there is no genuine issue as to any material

fact; 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 reason-

able minds might differ; in general, a factual dispute

exists when there is conflicting evidence concerning

what happened, or when, where, or how something

happened, or who was involved, or some other similar

factual inquiry (MCR 2.116 [C][10]). Attorney General v

PowerPick Club, 287 Mich App 13.

MOTOR VEHICLE LIABILITY COVERAGE—See

NSURANCE

MOTOR VEHICLES—See

ONFLICT OF

AWS

NAMED EXCLUDED OPERATORS—See

NSURANCE

NEGLIGENCE—See

CTIONS

1, 2

NO-FAULT—See

NSURANCE

2, 3

NOTICE BY INJURED PERSON—See

OVERNMENTAL

MMUNITY

872 287 M

ICH

NOTICE OF CLAIM AGAINST GOVERNMENTAL

AGENCIES—See

RAINS

NOTICE OF CLAIM AGAINST TRANSPORTATION

AUTHORITY—See

CTIONS

NOTICE OF EXCLUDED OPERATORS—See

NSURANCE

NOTICE OF INTENT TO FILE A MEDICAL

MALPRACTICE ACTION—See

CTIONS

IMITATION OF

CTIONS

1, 2

NOTICE OF NONPARTY AT FAULT—See

IMITATION OF

CTIONS

NURSES—See

CTIONS

OFFICER’S DUTIES—See

RIMINAL

3, 4

OFFICIAL FUNCTIONS—See

ECORDS

OWNER’S LIABILITY—See

ONFLICT OF

AWS

PARENT AND CHILD

ERMINATION OF

ARENTAL

IGHTS

1. Absent adoption, an order terminating a parent’s paren-

tal rights does not terminate that parent’s obligation to

support his or her minor children. In re Beck, 287 Mich

App 400.

PARENTS’ OBLIGATION TO SUPPORT MINOR

CHILDREN—See

ARENT AND

HILD

NDEX

-D

IGEST

873

PENALTY INTEREST—See

TTORNEY

EES

PERSONAL DOCUMENTS—See

ECORDS

PERSONAL PROTECTION INSURANCE

BENEFITS—See

NSURANCE

2, 3

POLICY EXCLUSIONS—See

NSURANCE

POSTJUDGMENT ORDERS—See

PPEAL

UDGMENTS

PREMEDITATION—See

RIMINAL

PRIMARY CRITERIA—See

AXATION

PRISONERS AND PAROLEES—See

ENTENCES

PRIVACY EXEMPTION—See

LECTIONS

PROPRIETARY FUNCTION EXCEPTION—See

OVERNMENTAL

MMUNITY

3, 4, 5

PROSECUTING ATTORNEYS

ONFLICTS OF

NTEREST

1. A conflict of interest involving an assistant prosecuting

attorney does not automatically require recusal of the

entire staff of the prosecutor’s office, rather, courts

examine whether the assistant prosecuting attorney at

issue has supervisory authority over other prosecutors

in the office or the authority to make policy. People v

Waterstone, 287 Mich App 368.

2. The disqualification of an entire prosecutor’s office for

an alleged conflict of interest is not automatic; courts

874 287 M

ICH

must consider the client’s showing of actual prejudice

and examine the extent to which the client’s confiden-

tial information could be used to his or her detriment.

People v Waterstone, 287 Mich App 368.

PUBLIC DOCUMENTS—See

ECORDS

PUBLIC HARM—See

OTTERIES

PUBLIC RECORDS—See

ECORDS

1, 2, 3

PUBLIC USE—See

IGHWAYS

1, 2, 3, 4

REASONABLE SUSPICION—See

EARCHES AND

EIZURES

1, 2

RECORDS

REEDOM OF

NFORMATION

1. A “public record” for purposes of the Freedom of Infor-

mation Act is a writing prepared, owned, used, in the

possession of, or retained by a public body in the

performance of an official function, from the time it is

created; mere possession of a record by a public body

does not render the record a public document; the use or

retention of a record by a public body must be in the

performance of an official function for the record to be a

public record (MCL 15.232[e]). Howell Ed Ass’n,

MEA/NEA v Howell Bd of Ed, 287 Mich App 228.

2. A back-up system employed by a public school system to

retain all e-mails sent through the school’s computer

system and that does not distinguish between e-mails

sent pursuant to the school’s education goals and those

sent by employees for personal reasons is not perform-

ing an “official function” sufficient to render the e-mails

public records subject to the Freedom of Information

Act (MCL 15.232[e]). Howell Ed Ass’n, MEA/NEA v

Howell Bd of Ed, 287 Mich App 228.

3. Purely personal documents can become public docu-

ments for purposes of the Freedom of Information Act

where the subsequent use or retention of the personal

NDEX

-D

IGEST

875

documents by a public body is in the performance of an

official function of the public body (MCL 15.232[e]).

Howell Ed Ass’n, MEA/NEA v Howell Bd of Ed, 287

Mich App 228.

REGULATORY FEES—See

AXATION

RELEVANT EVIDENCE—See

RIMINAL

RELIEF FROM JUDGMENTS—See

UDGMENTS

2, 3, 4

REVISED JUDICATURE ACT—See

ILLS,

OTES, AND

HECKS

RIGHT OF CONFRONTATION—See

ONSTITUTIONAL

3, 4

RIPARIAN RIGHTS—See

ATER AND

ATERCOURSES

ROLE OF JURY—See

RIAL

RULES OF PROFESSIONAL CONDUCT—See

TTORNEY

ENERAL

SCHOOLS—See

EARCHES AND

EIZURES

SEARCHES AND SEIZURES

NONYMOUS

IPSTERS

1. Whether reasonable suspicion for a search exists in a

case involving an anonymous tipster must be tested

under the totality of the circumstances with a view to

the question whether the tip carries with it sufficient

indicia of reliability to support a reasonable suspicion of

criminal activity; an anonymous tip can provide reason-

able suspicion if it is considered along with a totality of

the circumstances that show the tip to be reliable, but,

alone, without any indicia of reliability or means to test

the informant’s knowledge or credibility, an anonymous

876 287 M

ICH

tip is generally insufficient to support a reasonable

suspicion. People v Perreault, 287 Mich App 168.

CHOOLS

2. The police may search a motor vehicle without a war-

rant if they have probable cause to believe that evidence

of a crime can be found therein; school officials may

search a student’s person or property on school pre-

mises on the lesser standard of reasonable suspicion;

reasonable suspicion requires articulable reasons and a

particularized and objective basis for suspecting the

particular person of criminal activity. People v Perreault,

287 Mich App 168.

RAFFIC

TOPS

3. The temporary seizure of the driver and passengers of a

vehicle stopped by the police ordinarily continues, and

remains reasonable, for the duration of the stop, which

normally ends when the police have no further need to

control the scene and inform the driver and passengers

that they are free to leave. People v Corr, 287 Mich App

499.

SENTENCES

ENTENCING

UIDELINES

1. A court may not sentence a defendant who is entitled to an

intermediate sanction under the sentencing guidelines to

prison unless it states on the record a substantial and

compelling reason for the departure (MCL 769.34[3];

769.34[4][a]). People v Lucey, 287 Mich App 267.

2. A sentencing court’s speculation regarding what action

the department of corrections or the parole board might

take in the future with respect to a prisoner or parolee

within its jurisdiction is not an objective and verifiable

fact that can serve as a substantial and compelling

reason to depart from the sentence recommended under

the guidelines (MCL 769.34[3]). People v Lucey, 287

Mich App 267.

SENTENCING GUIDELINES—See

ENTENCES

1, 2

SEPARATE RECORDS OF VOTERS—See

LECTIONS

SEWAGE-DISPOSAL-SYSTEM EVENTS—See

RAINS

NDEX

-D

IGEST

877

SEX OFFENDERS REGISTRATION ACT—See

RIMINAL

SEXUAL MOLESTATION INJURIES—See

NSURANCE

4, 5

SOVEREIGN IMMUNITY—See

CTIONS

SPECIAL ASSESSMENTS—See

AXATION

SPIRITUAL FUNCTIONS—See

ONSTITUTIONAL

STAIRWAYS—See

ANDLORD AND

ENANT

STANDARDS OF CARE—See

CTIONS

ITNESSES

STANDING—See

CTIONS

4, 5

STATUTORY DUTIES—See

ANDLORD AND

ENANT

SUMMARY DISPOSITION—See

ITNESSES

TAX ASSESSMENTS—See

AXATION

4, 5

TAX TRIBUNAL—See

AXATION

4, 5

TAXATION

See, also,

ONDOMINIUMS

EES

1. The three primary criteria to be considered when dis-

878 287 M

ICH

tinguishing between a fee and a tax is that a fee serves

a regulatory purpose rather than a revenue-raising

purpose, a fee is proportionate to the necessary costs of

the service rendered or benefit conferred in exchange for

the fee, and a fee is voluntary; the criteria are to be

considered in their totality, not in isolation, so that a

weakness in one area does not necessarily mandate a

finding that the charge at issue is not a fee. Wolf v City

of Detroit, 287 Mich App 184.

2. A regulatory fee can have dual purposes and still main-

tain its regulatory character; as long as the primary

purpose of the fee is regulatory in nature, it can also

raise money if it is in support of the regulatory purpose.

Wolf v City of Detroit, 287 Mich App 184.

PECIAL

SSESSMENTS

3. Special assessments are not taxes for the purposes of

constitutional tax limitations; the differences between a

special assessment and a tax are that a special assess-

ment can be levied only on land and cannot be made a

personal liability of the person assessed, and also that a

special assessment is based wholly on benefits and is

exceptional both as to time and locality. Michigan’s

Adventure, Inc v Dalton Twp, 287 Mich App 151.

RIBUNAL

4. The Tax Tribunal has exclusive and original jurisdiction

over proceedings for direct review of a final decision of

an agency relating to tax assessments, including consti-

tutional arguments that a tax assessment is arbitrary

and without foundation or that the taxing authority

failed to follow statutory procedures for imposing as-

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

287 Mich App 151.

5. The Tax Tribunal has exclusive and original jurisdiction

over any proceeding for the direct review of a final

decision relating to an assessment under the property

tax laws of this state; such jurisdiction is not limited to

cases where provisions of the property tax laws are to be

exclusively or primarily interpreted; the Tax Tribunal

has exclusive and original jurisdiction as to the imposi-

tion of taxes by agencies operating under the authority

of the property tax laws, including cases where other

laws might limit that authority or exempt taxpayers

from tax liability (MCL 205.731[a] and [b]). Kasberg v

Ypsilanti Twp, 287 Mich App 563.

NDEX

-D

IGEST

879

ORDS AND

HRASES

6. A “tax” is designed to raise revenue, while a “fee”

generally is exchanged for a service rendered or a

benefit conferred and some reasonable relationship ex-

ists between the amount of the fee and the value of the

service or benefit. Wolf v City of Detroit, 287 Mich App

184.

TEMPORARY SEIZURES—See

EARCHES AND

EIZURES

TERMINATION OF PARENTAL RIGHTS—See

ARENT AND

HILD

TESTIMONIAL STATEMENTS—See

ONSTITUTIONAL

3, 4

TORTS

BUSE OF

ROCESS

1. An action for abuse of process lies for the improper use

of process after it has been issued, not for maliciously

causing it to issue. Dalley v Dykema Gossett PLLC, 287

Mich App 296.

NTENTIONAL

NFLICTION OF

MOTIONAL

ISTRESS

2. A plaintiff, to establish a prima facie claim of intentional

infliction of emotional distress, must present evidence of

the defendant’s extreme and outrageous conduct, the

defendant’s intent or recklessness, causation, and the

severe emotional distress of the plaintiff; liability will

attach only if the plaintiff demonstrates that the defen-

dant’s conduct was so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency and to be regarded as atrocious and utterly

intolerable in a civilized community. Dalley v Dykema

Gossett PLLC, 287 Mich App 296.

NTERFERENCE

ITH A

USINESS

ELATIONSHIP

3. The elements of a claim of tortious interference with a

business relationship are the existence of a valid busi-

ness relationship or expectancy, knowledge of the rela-

tionship or expectancy on the part of the defendant, an

intentional interference by the defendant inducing or

causing a breach or termination of the relationship or

expectancy, and resultant damage to the plaintiff; the

880 287 M

ICH

plaintiff must demonstrate that the defendant acted

both intentionally and either improperly or without

justification to fulfill the third element and must dem-

onstrate, with specificity, affirmative acts by the defen-

dant that corroborate the improper motive of the inter-

ference to establish that the defendant’s conduct lacked

justification and showed malice; where the defendant’s

actions were motivated by legitimate business reasons,

its actions would not constitute improper motive or

interference. Dalley v Dykema Gossett PLLC, 287 Mich

App 296.

NVASION OF

RIVACY

4. The three elements necessary to establish a prima facie

case of intrusion upon seclusion are the existence of a

secret and private subject matter, a right possessed by the

plaintiff to keep that subject matter private, and the

obtaining of information about that subject matter

through some method objectionable to a reasonable per-

son; such an action focuses on the manner in which the

information was obtained, not on the information’s publi-

cation. Dalley v Dykema Gossett PLLC, 287 Mich App 296.

5. There can be no invasion of privacy under the theory of

intrusion upon the seclusion of the plaintiff if the

plaintiff consented to the defendant’s intrusion; the

scope of a waiver or consent generally will present a

question of fact for the jury. Dalley v Dykema Gossett

PLLC, 287 Mich App 296.

TRAFFIC STOPS—See

EARCHES AND

EIZURES

TRANSPORTATION AUTHORITIES—See

CTIONS

ONFLICT OF

AWS

TREBLE DAMAGES—See

RESPASS

TRESPASS

REBLE

AMAGES

1. The statute that provides, in part, that a person who

intentionally cuts down or carries away any grass, hay,

or grain from another’s land is liable for treble damages

NDEX

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IGEST

881

does not require that the item that is cut down or

carried away be of agricultural value; the alleged poi-

soning or damaging of grass is not included within the

coverage of the statute (MCL 600.2919[1][c]). Persell v

Wertz, 287 Mich App 576.

TRIAL

TTORNEY

EES

1. Although it is within a trial court’s discretion to adjust

an award of attorney fees in light of the result achieved,

it is not required to do so as long as the ultimate award

remains reasonable. Tinnin v Farmers Ins Exch, 287

Mich App 511.

URY

RIALS

2. The proper role of a jury is to decide what the facts are and

not what the facts mean. Attorney General v PowerPick

Club, 287 Mich App 13.

ULTRA VIRES ACTIVITIES—See

OUNTIES

UNIVERSITIES—See

OVERNMENTAL

MMUNITY

USUAL AND CUSTOMARY CHARGES—See

OSPITALS

VOTER REGISTRATION RECORDS—See

LECTIONS

WAIVER OF IMMUNITY—See

CTIONS

WASTE DISPOSAL FACILITIES—See

OUNTIES

WATER AND WATERCOURSES

IPARIAN

IGHTS

1. No riparian rights arise from an artificial body of water

under Michigan law; land abutting on an artificial

watercourse has no riparian rights; artificial water-

courses are waterways that owe their origin to acts of

men. Persell v Wertz, 287 Mich App 576.

882 287 M

ICH

WHISTLEBLOWERS’ PROTECTION ACT—See

ONSTITUTIONAL

WITHDRAWAL OF DEDICATION—See

IGHWAYS

WITNESSES

XPERT

ITNESSES

1. A party offering the testimony of an expert witness in a

medical malpractice action must demonstrate the wit-

ness’ knowledge of the applicable standard of care; a

nonlocal expert may testify if the expert demonstrates a

familiarity with the standard of care in an area similar

to the community in which the defendant practiced.

Decker v Rochowiak, 287 Mich App 666.

OTIONS AND

RDERS

2. The qualifications and methods employed by an expert

need not be incorporated into an affidavit by the expert

submitted in support of, or opposition to, a motion for

summary disposition; the content of the affidavit must

be admissible in substance, not form (MCR 2.116[G][6],

2.119[B][1]). Dextrom v Wexford County, 287 Mich App

406.

WORDS AND PHRASES

See, also,

ONDOMINIUMS

2, 3,

LECTIONS

2, 3

OVERNMENTAL

MMUNITY

OSPITALS

NSURANCE

UDGMENTS

ORTGAGES

1, 2

ECORDS

ETTING

1. The term “betting” in common speech means the put-

ting of a certain sum of money or other valuable thing at

stake on the happening or not happening of some

uncertain event. Attorney General v PowerPick Club,

287 Mich App 13.

WORK-LOSS BENEFITS—See

NSURANCE

NDEX

-D

IGEST

883